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.
- 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.
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