Law on Medical Negligence: As it evolved in Jacob Mathew case and beyond

 

Law on Medical Negligence: As it evolved in

Jacob Mathew case and beyond

                                                                            Anil K Khaware

                                                                            Advocate

The disease and treatment are as old as the civilization itself. The human body is a complex creation representing various compartments, different systems that regulates the entire physiology and biochemistry of the system itself. Human body is akin to a complex machine and the disorder in the machine is often caused and remedy is craved for, similarly, the disorder is sought to be treated in the case of human too. However, unlike, machines there is no scope of a retake and if the treatment goes wrong the fall out could be irreversible. The methodology of treatment has evolved over the years and also evolved various vista of medical science and the Allopath Medical Treatment, which is largely based on therapeutic measures are relatively a recent branch of medical science. The Ayurved and homeopathy are also a parallel branch.

A.   HISTORY:

Dates back Charaka-samhita, contained a comprehensive text on ancient Indian medicine who was a practitioner of the traditional system of Indian medicine known as Ayurveda. The Charaka divided the treatise into eight parts, or ashtanga thanas:  sutra,  nidana,  vimana,  sarira,  endriya,  chikitsa,  kalpa,  and  siddha; each part contained multiple chapters.

While Charaka delved into various aspects of medicine, however special emphasis was accorded to the diagnosis of disease and treated Ayurveda as a comprehensive system of health care that dealt with both preventive and curative aspects. He also dealt elaborately with subjects such as fetal generation and development, anatomy of the human body, and function and malfunction of the body according to the tridosha —vata, pitta, and kapha. He also discussed the classification of various diseases.

Notably, the medicine and treatment has been the integral part of the civilization and in built on it is the care rendered and adequacies or inadequacies in treatment are inherent. The Allopaths, more particularly, leads to therapeutic mode of treatment and has lead to the demand of adequate and effective services. Medical profession is considered to be a noble profession and the relationship between the patient and Doctor is sacred and based on trust. However, negligence are caused and attributed to the treatment, mode and manner of it, deficiency leading to negligence surrounding treatment and corresponding mechanism of recompense.

The issue of medical negligence and the impetus to it has gained momentum in India since 1969. In this broad conspectus it is important to know as to what constitutes medical negligence. A doctor owes certain duties to the patient who consults him for the treatment of ailments he suffers from. A deficiency in this duty results in negligence. Indian society is experiencing a growing awareness regarding patient's rights. This trend is clearly discernible from the recent spurt in litigation concerning medical professional or establishment liability, claiming redressal for the suffering caused due to medical negligence, vitiated consent, and breach of confidentiality arising out of the doctor-patient relationship. The patient-centered initiative of rights protection is required to be appreciated in the economic context of the rapid decline of State spending and massive private investment in the sphere of the health care system As of now, the adjudicating process with regard to medical professional liability, be it in a consumer forum or a regular civil or criminal court, considers common law principles relating to negligence, vitiated consent, and breach of confidentiality. However, it is equally essential to note that the protection of patient's right shall not be at the cost of professional integrity and autonomy. A need for striking a delicate balance is therefore essential, else, the consequences would be inexplicable.

As per section 2 (d) of Consumer Protection Act 1986 as amended a consumer is a person who hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person hires or avails of the services for consideration paid or promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. This definition is wide enough to include a patient who merely promises to pay. In a case captioned as Indian Medical Association vs. V.P. Shantha 1995 (6) SCC 651, the hon’ble Supreme Court has brought the medial practitioner within the trap of the Consumer Protection Act.

A complaint is an allegation in writing made by a Complainant, i.e., a consumer that he or she has suffered loss or damage as a result of any deficiency of service. Deficiency of service means any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance that is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

In the event of perceived deficiency in service it is available to the consumer to approach Consumer Forums/Commissions for seeking redersaal of their grievance. At this stage there is no need to elucidate the entire gravamen, still, the framework of procedure laid down as per law may need some explaining. The Consumer Commissions have a variety of powers and are listed as sunder for illustrative purpose:

(1) Summoning and enforcing of the attendance of any defendant or witness and examining the witness under oath,

(2) the discovery and production of any document or other material object producible as evidence,

(3) the reception of evidence on affidavits,

(4) the summoning of any expert evidence or testimony,

(5) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source,

(6) issuing of any commission for the examination of any witness, and

(7) any other matter which may be prescribed.

The process before the competent forum may be set in motion by filing a written complaint before the Consumer Commission based on the pecuniary limits. The Commission may issue written notice after admitting the complaint and calling upon the opposite parties to for a written version to be submitted within 30 days. Thereafter, upon proper scrutiny, the Commission would call upon the parties to file affidavit or production of evidence in the form of interrogatories, expert evidence, medical literature, and judicial decisions.

B.     JUDICIAL INTERPRETATION OF MEDICAL NEGLIGENCE LIABILITY

By and large the following legal issues have been addressed and responded to by different forums and Courts in India.

Charge of Medical Negligence against Professional Doctors

From the time of Lord Denning until now it has been held in several judgments that a charge of professional negligence against the medical professional stood on a different footing from a charge of negligence against the driver of a Motor Car. The burden of proof is correspondingly greater on the person who alleges negligence against a Doctor. It is though a known fact that with the best skill in the world, things sometimes went wrong in medical treatment or surgical operation. A Doctor was not to be held negligent simply because something went wrong. The National Commission as well as the Apex Court in catena of decisions has held that a Doctor is not liable for negligence, because of someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way. He is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of Medical Professionals. The Hon'ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Trimbak, AIR 1969 SC 128, has held the above view that is still considered to be a landmark judgment for deciding a case of negligence. In the case of Indian Medical Association case (Supra) the Apex Court has adjudicated that the skill of a Medical Practitioner differs from Doctor to Doctor and it is incumbent upon the Complainant to prove that a Doctor was negligent in the line of treatment of the patient. Therefore, a Judge can find a Doctor guilty only when it is proved that the Doctor he has fallen short of the standard of reasonable medical care. The principle of Res-Ipsa-Loquitur has not been generally followed by the Consumer Courts in India including the National Commission or even by the Apex Court in deciding the case under this Act. In catena of decisions, it has been held that it is for the Complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this is to be proved beyond all reasonable doubts. Mere allegation of negligence will be of no help to the Complainant.

C.   What Constitutes Medical Negligence

Failure of an operation and side effects are not negligence. The term “Negligence” is generally defined as the absence or lack of care that a reasonable person should have taken in the circumstances of the case. For instance, nerves may be cut down at the time of operation and mere cutting of a nerve does not amount to negligence, unless negligence is palpable. The expert evidence in such an event shall also be a pre-requisite. Thus, mere allegation will not make out a case of negligence, unless it is proved by reliable evidence and is supported by expert evidence. Unless the negligence of the Doctor is proved, the compensation may not be awarded.

(i)  MEDICAL NEGLIGENCE - DEFINITIONAL ASPECTS

Negligence is simply the failure to exercise due care. The three ingredients of negligence are as follows:

1.    Owing a duty of care to the patient.

2.    The Doctor has breached this duty of care.

3.    The patient has suffered an injury due to this breach.

(ii)          When does a duty arise?

It is well known that a Doctor owes a duty of care to his patient. This duty can either be a contractual duty or a duty arising out of law of torts. In the words of the Supreme Court “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life Ref: Parmanand Kataria vs. Union of India AIR 1989 SC 2039. These cases are however restricted to situations where there is danger to the life of the person. Impliedly, therefore, in other circumstances the doctor does not owe a duty. The duty owed by a doctor towards his patient, in the words of the Supreme Court is to “bring to his task a reasonable degree of skill and knowledge” and to exercise “a reasonable degree of care” Ref: Laxman Trimback case (Supra) . The Doctor, in other words, does not have to adhere to the highest or sink to the lowest degree of care and competence in the light of the circumstance. A Doctor, therefore, does not have to ensure that every patient who comes to him is cured. He has to only ensure that he confers a reasonable degree of care and competence.

Reasonable degree of care and skill means that the degree of care and competence that an “ordinary competent member of the profession who professes to have those skills would exercise in the circumstance in question.” At this stage, it may be necessary to note the distinction between the standard of care and the degree of care. The standard of care is a constant and remains the same in all cases. It is the requirement that the conduct of the doctor be reasonable and need not necessarily conform to the highest degree of care or the lowest degree of care possible. The degree of care is a variable and depends on the circumstance. It is used to refer to what actually amounts to reasonableness in a given situation.

Thus, though the same standard of care is expected from a generalist and a specialist, the degree of care would be different. In other words, both are expected to take reasonable care but what amounts to reasonable care with regard to the specialist differs from what amount of reasonable care is standard for the generalist. In fact, the law expects the specialist to exercise the ordinary skill of this specialty and not of any ordinary Doctor. Another question that arises is with regard to the knowledge that is expected from a Doctor. Should it include the latest developments in the field, hence require constant updating or is it enough to follow what has been traditionally followed? It has been recognized by the courts that what amounts to reasonableness changes with time. The standard, as stated clearly herein before, requires that the doctor possess reasonable knowledge. Hence, we can conclude that a doctor has to constantly update his knowledge to meet the standard expected of him. Furthermore, since only reasonable knowledge is required, it may not be necessary for him to be aware of all the developments that have taken place.

Doctors are also imposed with a duty to take the consent of a person/patient before performing acts like surgical operations and in some cases treatment as well. To summarize, any act that requires contact with the patient has to be consented by the patient. A duty of care is imposed on the doctors in taking the patient's consent. Naturally, a question arises as to what is this duty of care. As per the judicial pronouncements, this duty is to disclose all such information as would be relevant or necessary for the patient to make a decision. The duty does not extend to disclosing all possible information in this regard and does not extend to warning a patient of all the normal attendant risks of an operation. The standard of care required of a Doctor while obtaining consent is again that of a reasonable Doctor, as in other cases.

(iii) The liability

The liability of a Doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the Doctor, which has fallen below that of reasonable care. In other words, the Doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the complainant must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the Doctor will not be liable. In order to show the breach of duty, the burden on the complainant would be to first show what is considered as reasonable under those circumstances and then that the conduct of the Doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to merely show that there exists a body of opinion which goes against the practice/conduct of the Doctor.

With regard to causation, the court has held that it must be shown that of all the possible reasons for the injury, the breach of duty of the doctor was the most probable cause. It is not sufficient to show that the breach of duty is merely one of the probable causes. Hence, if the possible causes of an injury are the negligence of a third party, an accident, or a breach of duty care of the Doctor, then it must be established that the breach of duty of care of the doctor was the most probable cause of the injury to discharge the burden of proof on the plaintiff.

Normally, the liability arises only when the complainant is able to discharge the burden on him of proving negligence. However, in some cases like a swab left over the abdomen of a patient or the leg amputated instead of being put in a cast to treat the fracture, the principle of ‘res ipsa loquitur’  might come into play. The following are the necessary conditions of this principle:

a.    Complete control rests with the Doctor.

b.    It is the general experience of mankind that the accident in question does not happen without negligence. This principle is often misunderstood as a rule of evidence, which it is not. It is a principle in the law of torts. When this principle is applied, the burden is on the Doctor/opposite party to explain how the incident could have occurred without negligence.

A doctor is not necessarily liable in all cases where a patient has suffered an injury. This may either be due to the fact that he has a valid defense or that he has not breached the duty of care. Error of judgment can either be a mere error of judgment or error of judgment due to negligence. Only in the case of the former, it has been recognized by the courts as not being a breach of the duty of care. It can be described as the recognition in law of the human fallibility in all spheres of life. A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. It is situation in which only in retrospect can we say there was an error. At the time when the decision was made, it did not seem wrong. No doubt, if due consideration of all the factors was not taken, then, it would amount to an error of judgment due to negligence.

(iv)        Test of Standard of Care: BOLAM TEST

The Bolam Test has its genesis from English tort law, which is in vogue to assess medical negligence. It holds that the law imposes a duty of  care  between a doctor and his patient, but the standard of that care is a  matter  of  Medical Judgment Under Bolam, the complainant seeking to  prove  medical  negligence needs to (1) show that there was a duty of care  between the doctor or nurse and the patient, which is usually a straightforward exercise, and (2) that the act or omission of the doctor or nurse breached the duty of care. In Bolam v Friern Hospital Management Committee [1957], the court held that there is no breach of standard of care if a responsible body of similar professionals support the practice that caused the injury, even if the practice was not the standard of care. The ruling meant that the accused doctor need only to find an expert who would testify to having done the same thing. 

The Bolam test has been widely accepted as decisive of the standard of care required by medical practitioners, and it is invariably cited with approval before the courts in India, and applied as a touchstone to test the pleas of medical negligence. That the hon’ble Supreme  Court followed the Bolam test in Jacob Mathew v. State of Punjab. The court summed up the law on medical negligence in the following words:

“48. (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are Three (3) ‘duty’, ‘breach’ and ‘resulting damage’. (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence, merely, because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure, which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3)A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4)The test for determining medical negligence as laid down in Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118] holds good in its applicability in India.”

in Jacob Mathew case (Supra) it is also held that in a case of alleged medical negligence criminal proceedings are not warranted and only civil remedy is required to be availed of which is self contained and continuing criminal proceedings in a matter like this shall tantamount to abuse of the process of court.

(v)          COMPENSATION:

The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.

4. NEGLIGENCE: A broad perspective:

The discussion on negligence shall find the following broad parameter of medical negligence though it is not possible to stipulate a straightjacket formula. The same are as under:

(i)      Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are : 'duty', 'breach' and 'resulting damage'.

(ii)     In order to infer rashness or negligence on the part of a professional,  particularly a doctor, additional considerations need to apply. The finer point is : a case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence, merely, because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.

(iii) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.

(iv) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

(v) The jurisprudential concept of negligence differs in civil and criminal       law. What may be negligence in civil law may not necessarily be negligence in criminal law. Besides, in criminal cases Mens Rea must be shown to exist. Obviously, to bring the negligence to criminal ambit the degree of negligence should be much higher i.e. gross or of a very high degree, else<mere negligence may be actionable in civil law and not in criminal law.

(vi) Interestingly, Section 304 of IPC deals with criminal negligence, but the word 'gross' has not been used in that section, yet it is settled that to construe negligence in criminal law the degree of negligence or recklessness must be of such a high degree as to be 'gross'. It may be noted that section 304 A of Indian Penal Code finds the expression 'rash or negligent act'  and it has to be read as qualified by the word 'grossly'.

(vii)    To prosecute a medical professional for negligence under criminal law, it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.

(viii) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law.

In MAHARAJA AGRASEN HOSPITAL & ORS. Versus MASTER RISHABH SHARMA 2019 SCC Online SC 1658 it is held as under :

“We affirm the findings of the National Commission to hold that the Appellant No.1-Hospital, Appellant Nos. 2 and 3- the Paediatricians, and Appellant No.4 – Dr. S.N. Jha, the Senior Ophthalmologist, owed a legal duty of care to the Complainants/Respondents No.1 and 2. The failure to inform the Respondent No.2-mother of the necessity to have the ROP test conducted in the case of a pre-term baby, and the high risk involved which could lead to total blindness, was a breach of duty. Furthermore, the failure to carry out the ROP test, which is mandated by standard protocol, while the baby was under their direct care and supervision from birth till he Bar & Bench (www.barandb,ench.com) 62 was 3 ½ months old, amounted to gross negligence by the Doctors, and deficiency of service by the Hospital. The consequential damage caused to the baby by not having conducted the mandatory ROP test, which led to the total blindess of the baby, has given rise to an actionable claim of the negligence”.

It is further held in the above judgment that it is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors.

E. The Need for Expert Evidence in Medical Negligence Cases

The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could be based. To buttress their case, the Complainant may produce expert witnesses to bring out and prove that there was any fault in the performance of the operations. “As per the settled law, In medical negligence cases, it is for the patient to establish his case against the medical professional and not for the medical professional to prove that he acted with sufficient care and skill. The reference in the case may be have to the decision of the Madhya Pradesh High Court in the case of Smt. Sudha Gupta and Ors. vs. State of M.P. and Ors., 1999 (2) MPLJ 259. The National commission has also taken the same view observing that a mishap during operation cannot be said to be deficiency or negligence in medical services. Negligence has to be established and cannot be presumed. Ref: Kanhiya Kumar Singh vs. Park Medicare and Research Centre, III (1999) CPJ 9 (NC) – (2000) NCJ (NC) 12. A similar view has been taken by the MRTP Commission in the case of P.K. Pandey vs. Sufai Nursing Home, I (1999) CPJ 65 (MRTP) – 2000 NCJ (MRTP) 268.. The National Commission has held in Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and anr, 1998 CTJ 7, that in the absence of evidence regarding the cause of death and absence of any expert medical evidence, the medical negligence cannot be inferred.

This brings us to another aspect i.e whether in order to establish negligence in any particular case, the alleged act, omission, or course of conduct that is the subject of the complaint must be judged not by ideal standards nor in the abstract but against the background of the circumstances in which the treatment in question was given. The true test for establishing negligence on the part of a doctor is as to whether he has been proven guilty of such failure as no doctor with ordinary skills would be guilty, if acting with reasonable care. Merely because a medical procedure fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving this rests upon the person who asserts it. There is no question of warranty, undertaking, or profession of a skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. Even a deviation from normal professional practice shall not necessarily be a requisite of negligence.

F.   The reasoning and decision

Like in all other cases, the courts adjudicate the issue of negligence on the touchstone of law and applying the facts of the case and doctors are not spared if found negligent. However, to bring out the case of negligence, mere complaint without substantiation shall not help. True, medical practitioners are placed within the purview of the Consumer Protection Act, but negligence could be inferred only on the basis of documents on record and applying the principles of negligence and not in a mechanical way. After the medical profession was brought under the Consumer Protection Act vide the judgment rendered in Indian Medical Association (supra) doctors who administer any elementary injection are often blamed and cases of medical negligence are filed against them. The result is that many doctors have stopped giving even specific elementary befitting the situation, even in emergencies, despite the fact that from the symptoms the doctor honestly thought the patient was having a certain ailment necessitating the requisite dose of specific injection. This was out of fear that if the patient died the doctor would have to face legal proceedings. This has resulted in recommending the transfer of patients to hospitals without first aid, out of fear of facing legal proceedings do not give first aid to the patient, and by that time the patient may develop other complications. Obviously, the judgment rendered in Indian Medical Association (Supra) should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. The courts have also repeatedly issued directions that the police officials should not arrest or harass doctors, unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent.

It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their ritualistic  oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples. It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some cogent evidence against such Doctors. .

 

 

CONCLUSION

The law, like medicine, is an inexact science. One cannot predict with certainty an outcome in many cases. It depends on the particular facts and circumstances of the case, and also the personal notions of the Judge who is hearing the case. However, the broad and general legal principles relating to medical negligence need to be understood. Before dealing with these principles two aspects are to be kept in mind:

The following generic principles are thus laid down by hon’ble Supreme Court in the decisions rendered above, has devised following principles as regards negligence:

Negligence should be guided upon the principle of reasonableness of common man prudence and at the same time negligence must be established to claim and award compensation in a given case.

(i)    Certain degree of skill and knowledge and standard of care in cases of medical professional shall be expected of them and the degree of care  expected shall be generally high than a common man’s perspective and the same is required to be duly considered by courts of law.

(ii)    If the standard of care is reasonably less than the reasonable care that may be taken from a competent practitioner, then, the practitioner could be held liable.

(iii)    Medical professionals sometime has to make a difficult choice between certain circumstance such as when higher risk may be involved with possibility of higher success and per contra lesser risk with higher chances of failure. This cannot be put to any strait jacket formula and the facts and circumstances of each case should be taken into the consideration.

(iv)  If duty is performed by Medical Professional with utmost care, No negligence could be attributed on medical professional, even if the result is not on the expected line.

(v)   Fear psychosis should be the last thing in the mind of Medical professional and no undue harassment should be meted out to them and unwanted apprehension and fear should not be created on the medical fraternity.

(vi) The Medical Practitioner should be given some liberty to attend some peculiar and piquant situation where they need to make their judgment on the spot as per their professional expertise without any apprehension. In fact this will afford proper leveraging on them and may be beneficial to the society. 

What is to be borne in mind is that Judges are not experts in medical science and this itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges usually have to rely on the testimonies of other doctors, which may not be objective in all cases. Since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand for a Judge, particularly in complicated medical matters and thus a balance has to be struck in such cases. While Doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this, no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against Doctors are counter- productive and are no good for society. They inhibit the free exercise of judgment by a professional in a particular situation.

                                                          ----------