MEDICAL NEGLIGENCE: STRICT PROOF NECESSARY
The Medical Negligence and the complaints
filed for that reasons in consumer courts are quite large in numbers and the
patients, who are in the receiving ends often alleges or attributes negligence
on Doctors and therefore the Supreme Court has again revisited the aspect with
a view to laid down parameter of medical negligence. In a matter captioned as NEERAJ SUD AND ANR. Vs JASWINDER
SINGH (MINOR) AND ANR bearing Civil Appeal No. 272 of 2012: 2024
INSC 825 the Supreme Court has analysed the issue further
and the parameter of medical negligence is redefined in the judgment pronounced
on 25th October 2024.
According to Supreme Court in Niraj Sud
(Supra), prima facie, when reasonable
care, expected of the medical professional, is extended or rendered to the
patient unless contrary is proved, it would not be a case for actionable
negligence. The Supreme Court while so doing had referred to a celebrated case
reported as Bolam
v. Friern Hospital Management Committee (Queen’s Bench
Division) English
Law (1957) 1 WLR 582,
wherein it was observed that a doctor is not negligent if he is acting in
accordance with the acceptable norms of practice unless there is evidence of a
medical body of skilled persons in the field opining that the accepted
principles/procedure were not followed.
The test so laid down popularly came to
be known as Bolam’s test and stands approved by the Supreme Court in a well
known judgment reported as Jacob Mathews v. State of Punjab and Another 2005(6) SCC 1. What
is of worth reference is that, in India, medical negligence and issues arising
thereunder was in a domain of civil cases only and only in 1986 Consumer
Protection was enacted and the Consumer Protection Act and cases thereunder were
further evolved in including doctors in the ambit of Consumer Protection act
for deficiency in service. The Bolan
case has therefore, provided the earlier guidelines and impetus in this regard. What therefore
shall emerge is that if on application of the said principle, if a doctor was a
competent and a skilled doctor possessing requisite qualification to perform
PTOSIS surgery and to administer the requisite treatment and that he had
followed the accepted mode of practice in performing the surgery then without
any material to establish any overt act or omission negligence on the part of a
doctor cannot be established. Therefore, without adducing evidence to prove
that the doctor had not exercised sufficient care or has failed to exercise due
skill in performing the surgical procedure the allegation cannot be deemed to
be substantiated.
Contextually, it will be pertinent to point out
that the State Commission had dismissed the complaint of complainant, however, the
National Commission for Consumer Disputes (NCDRC) had partially reversed the State
Commission decision only on the basis of the re-examination of
the record of the PGI which showed that the patient before operation had proper
6/9 vision in both the eyes and was suffering from a moderate PTOSIS with no
history of double vision. However, post-surgery, the condition of PTOSIS
deteriorated from moderate to severe and the vision of the patient also fell
down from 6/9 in both eyes to 6/18. The patient also suffered from double
vision post-surgery. Thus, the NCDRC held that the doctor was apparently
negligent in not giving proper treatment and was also careless in not
performing the repeat surgery.
However, the decision of NCDRC had not passed muster and the Supreme Court has set aside the judgment on the basis
of the discussion that shall follow later. Pertinently, the Supreme Court has
held in Niraj Sud (Supra) as under:
“11.
Deterioration of the condition of the patient post-surgery is
not necessarily indicative or suggestive of the fact that the surgery performed
or the treatment given to the patient was not proper or inappropriate or that
there was some negligence in administering the same. In case of surgery or such
treatment it is not necessary that in every case the condition of the patient
would improve and the surgery is successful to the satisfaction of the patient.
It is very much possible that in some rare cases complications of such nature
arise but that by itself does not establish any actionable negligence on part
of the medical expert.”
In Niraj Sud (Supra) in para 14
the Supreme Court has held as under:
“14. It is well
recognized that actionable negligence in context of medical profession involves
three constituents (i) duty to
exercise due care; (ii) breach of
duty and (iii) consequential damage.
However, a simple lack of care, an error of judgment or an accident is not sufficient
proof of negligence on part of the medical professional so long as the doctor
follows the acceptable practice of the medical profession in discharge of his
duties. He cannot be held liable for negligence merely because a better
alternative treatment or course of treatment was available or that more skilled
doctors were there who could have administered better treatment”.
Yet again, in para no. 18 it is held
as under:
“18. In other words, simply for the
reason that the patient has not responded favourably to the surgery or the
treatment administered by a doctor or that the surgery has failed, the doctor
cannot be held liable for medical negligence straightway by applying the
doctrine of Res Ipsa Loquitor unless it is established by evidence that
the doctor failed to exercise the due skill possessed by him in discharging of
his duties”.
It thus follows that a medical
professional may be held liable for negligence only when he is not possessed
with the requisite qualification or skill or when he fails to exercise
reasonable skill which he possesses in giving the treatment. Only if the above
two essential conditions for establishing negligence stand satisfied only then
the aspect of negligence could be looked into.
The
Supreme Court has thus laid down the law and has categorically held that merely
for the reason that the patient has not
responded favourably to the surgery or the treatment administered by a doctor
or that the surgery has failed, the doctor cannot be held liable for medical
negligence straightway by applying the doctrine of Res Ipsa Loquitor, unless, it is established by evidence
that the doctor failed to exercise the due skill possessed by him in
discharging of his duties. It may be noted that though, the doctrine res ipsa loquitor is recognized in law of torts, but there has to be
overwhelming reason to assume that there has been negligence and the magnitude
of it is so pervasive that proof shall not be necessary. Clearly, the said
principle cannot be applied simplistically and in literal sense of term, in the
case of medical negligence and therefore, the judgment of Supreme Court is a
clear pointer to the aspect of medical negligence.
---------
Anil
K Khaware
Founder & Senior Associate
Societylawandjustice.com
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