Medical Negligence: Law and
Interpretation
1. Negligence
by doctors has to be determined by judges who are not trained in medical
science. They rely on experts’ opinion and decide on the basis of basic
principles of reasonableness and prudence. This brings into a lot of
subjectivity into the decision and the effort is to reduce it and have certain
objective criteria. This may sound simple but is tremendously difficult as
medical profession evolves and experimentation helps in its evolution. Thus,
there is a constant tussle between the established procedures and innovative
methods. But, innovation simply for the sake of being different, without any
reason is not acceptable. And, these issues make it extremely challenging to
decide negligence by doctors.
Introduction
2. For a
patient, the doctor is like God. And, the God is infallible. But that is what
the patient thinks. In reality, doctors are human beings. And, to err is human.
Doctors may commit a mistake. Doctors may be negligent. The support staff may
be careless. Two acts of negligence may give rise to a much bigger problem. It
may be due to gross negligence. Anything is possible. In such a scenario, it is
critical to determine who was negligent, and under what circumstances. In a
country committed to the rule of law, such matters are taken to the court and
judges are supposed to decide. However, negligence by doctors is difficult to
be determined by judges as they are not trained in medical science. Their
decisions are based on experts’ opinion. Judges apply the basic principles of
law in conjunction with the law of the land to make a decision. Reasonableness
and prudence are the guiding factors. We would like to go through these
principles in the light of some court judgments and try to understand as to what
is expected from a doctor as a reasonable person. As these issues are at the
core of medical profession and hospitals are directly affected by new
interpretation of an existing law regarding medical professionals, it is
pertinent to deal with them at the individual level of the doctor, and also at
the employer’s level i.e., hospital.
Negligence
3. It is very
difficult to define negligence, however, the concept has been accepted in
jurisprudence. The authoritative text on the subject in India is the ‘Law of
Torts’ by Ratanlal and Dhirajlal [Law of Torts, Ratanlal & Dhirajlal, Twenty-fourth Edition 2002,
edited by Justice G.P. Singh; pp.441-442]. Negligence has been discussed
as: Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the
neglect of the use of ordinary care or skill towards a person to whom the
defendant owes the duty of observing ordinary care and skill, by which neglect
the plaintiff has suffered injury to his person or property. The definition
involves three constituents of negligence: (1) A legal duty to exercise due
care on the part of the party complained of towards the party complaining the
former's conduct within the scope of the duty; (2) breach of the said duty; and
(3) consequential damage. Cause of action for negligence arises only when
damage occurs; for, damage is a necessary ingredient of this tort. Thus, the
essential components of negligence are three: 'duty', 'breach' and 'resulting
damage'.
4. The Hon'ble
Supreme Court in Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole &
Anr. AIR 1969 SC 128 = 1969 SCR (1) 206, has laid down the duties which a
Doctor owes to his patient and observed as follows:-
"A person who holds himself out
ready to give medical advice and treatment impliedly undertakes that he is
possessed of skill and knowledge for the purpose. Such a person when consulted
by a patient owes him certain duties, viz.:-
a)
a duty of care in deciding whether to undertake the case;
b)
a duty of care in deciding what treatment to give or a dutof care
in the administration of that treatment.A breach of any of those, duties gives
a right of action for negligence to, the patient".
c)
In the instant case, it has to be seen whether there was any
breach of any of the duties giving a right of action for Negligence, to the
patient.
5. In the
landmark Bolam case [Bolam
v. Friern Hospital Management Committee, Queen’s Bench Division, 1957, Date of
decision - 26 February 1957, Citation: [1957] 1 W.L.R. 582 = [1957] 2 All E.R.
118], it was held that: In the ordinary case which does not involve any
special skill, negligence in law means a failure to do some act which a
reasonable man in the circumstances would do, or the doing of some act which a
reasonable man in the circumstances would not do; and if that failure or the
doing of that act results in injury, then there is a cause of action. Thus, the
understanding of negligence hinges on the ‘reasonable man’. Let us try to
understand who this ‘reasonable man’ is. The ‘Reasonable Man’ It has been held
by the courts that the test of reasonableness is that of the ‘ordinary man’ or
also called as the ‘reasonable man’. In Bolam case, it was discussed that: In
an ordinary case it is generally said you judge it by the action of the man in
the street. He is the ordinary man. In one case it has been said you judge it
by the conduct of the man on the top of a Clapham omnibus. He is the ordinary
man. Why the mention of ‘Clapham omnibus’? The Bolam judgment was pronounced in
1957 and Clapham, at that time, was a nondescript south London suburb. It
represented “ordinary” London. Omnibus was used at that time for the public
bus. Thus, “the man on the top of a Clapham omnibus” was a hypothetical person,
who was reasonably educated and intelligent but was a non-specialist. The
courts used to judge the conduct of any defendant by comparing it with that of
the hypothetical ordinary man. Professional According to the English language,
a professional is a person doing or practising something as a full-time
occupation or for payment or to a make a living; and that person knows the
special conventions, forms of politeness, etc. associated with a certain
profession. Professional is contrasted with amateur – a person who does
something for pleasure and not for payment [Oxford Advanced Learner’s Dictionary of Current English,
A. S. Hornby].
Negligence by professionals
6. The Supreme
Court of India discussed the conduct of professionals and what may amount to
negligence by professionals in Jacob Mathew’s case [Jacob Mathew vs. State of Punjab, Supreme Court of
India, August 5, 2005, Citation: 2005 (6) SCC 1 = AIR 2005 SC 3180] In
the law of negligence, professionals such as lawyers, doctors, architects and
others are included in the category of persons professing some special skill or
skilled persons generally. Any task which is required to be performed with a
special skill would generally be admitted or undertaken to be performed only if
the person possesses the requisite skill for performing that task. Any
reasonable man entering into a profession which requires a particular level of
learning to be called a professional of that branch, impliedly assures the
person dealing with him that the skill which he professes to possess shall be
exercised and exercised with reasonable degree of care and caution…. He does
not assure his client of the result…A physician would not assure the patient of
full recovery in every case. A surgeon cannot and does not guarantee that the
result of surgery would invariably be beneficial, much less to the extent of
100% for the person operated on… …Judged by this standard, a professional may
be held liable for negligence on one of 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 necessary for
every professional to possess the highest level of expertise 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.
The Bolam case very clearly distinguished between the negligence by an ordinary
man and negligence by a professional in the following words: But where you get
a situation which involves the use of some special skill or competence, then the
test as to whether there has been negligence or not is not the test of the man
on the top of a Clapham omnibus, because he has not got this special skill. The
test is the standard of the ordinary skilled man exercising and professing to
have that special skill. A man need not possess the highest expert skill; it is
well established law that it is sufficient if he exercises the ordinary skill
of an ordinary competent man exercising that particular art. Negligence by
Medical Professionals In Jacob Mathew case, the Supreme Court of India has gone
into details of what is the meaning of negligence by medical professionals.
Negligence in the context of 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. In the Bolam case, the court held that:
… In the case of a medical man, negligence means
failure to act in accordance with the standards of reasonably competent medical
men at the time. That is a perfectly accurate statement, as long as it is
remembered that there may be one or more perfectly proper standards; and if he
conforms with one of those proper standards, then he is not negligent. … He is
not guilty of negligence if he has acted in accordance with a practice accepted
as proper by a responsible body of medical men skilled in that particular art.
… A man is not negligent, if he is acting in accordance with such a practice,
merely because there is a body of opinion who would take a contrary view. At
the same time, that does not mean that a medical man can obstinately and
pigheadedly carry on with some old technique if it has been proved to be contrary
to what is really substantially the whole of informed medical opinion.
Otherwise you might get men today saying: “I do not believe in anaesthetics. I
do not believe in antiseptics. I am going to continue to do my surgery in the
way it was done in the eighteenth century.”
7. That clearly
would be wrong. Degree of Negligence The Delhi High Court laid down in 2005
that in civil law, there are three degrees of negligence [Smt. Madhubala vs. Government of
NCT of Delhi; Delhi High Court, 8 April 2005, Citation: 2005 Indlaw DEL 209 =
2005 (118) DLT 515] (i) lata culpa, gross neglect (ii) levis culpa,
ordinary neglect, and (iii) levissima culpa, slight neglect. Every act of
negligence by the doctor shall not attract punishment. Slight neglect will
surely not be punishable and ordinary neglect, as the name suggests, is also
not to be punished. If we club these two, we get two categories: negligence for
which the doctor shall be liable and that negligence for which the doctor shall
not be liable. In most of the cases, the dividing line shall be quite clear,
however, the problem is in those cases where the dividing line is thin. In all
such cases we fall back upon the test laid down in Bolam case and which has
been upheld in Jacob Mathew case. Before we proceed further, let us have a look
at the facts of the above mentioned two cases: Bolam and Jacob Mathew. Bolam
Case John Hector Bolam suffered from depression and was treated at the Friern
Hospital in 1954 by E.C.T. (electro-convulsive therapy). He was not given any relaxant
drug, however, nurses were present on either side of the couch to prevent him
from falling off. When he consented for the treatment, the hospital did not
warm him of the risks, particularly that he would be given the treatment
without relaxant drugs. He sustained fractures during the treatment and sued
the hospital and claimed damages for negligence. Experts opined that there were
two practices accepted by them: treatment with relaxant drugs and treatment
without relaxant drugs. Regarding the warning also, there were two practices
prevalent: to give the warning to the patients and also to give the warning
only when the patients ask about the risks. The court concluded that the
doctors and the hospital were not negligent.
Jacob Mathew Case
8. In this case
a patient was admitted to CMC Hospital, Ludhiana. He felt difficulty in
breathing. No doctor turned up for about 20-25 minutes. Later two doctors – Dr.
Jacob Mathew and Dr. Allen Joseph – came and an oxygen cylinder was brought and
connected to the mouth of the patient. Surprisingly, the breathing problem
increased further. The patient tried to get up. The medical staff asked him to
remain in bed. Unfortunately, the oxygen cylinder was found to be empty.
Another cylinder was brought. However, by that time the patient had died. The
matter against doctors, hospital staff and hospital went up to the Supreme
Court of India. The court discussed the matter in great detail and analysed the
aspect of negligence from different perspectives – civil, criminal, torts, by
professionals, etc. It was held that there was no case of criminal rashness or
negligence. Civil or Criminal Liability The liability of the doctor shall be
civil or criminal or both. One of the essential elements in criminal law is
mens rea – the guilty mind or an evil intention. The question arises as to
whether in cases of medical negligence – whether slight, ordinary or gross – is
there any criminal liability? As mens rea is essential, it is difficult to
argue that the doctor had a guilty mind and was negligent intentionally. This
has been the main argument in most of the cases in which the decision was to
decide about the criminal liability. For instance, in Mathew, neither the
doctor nor any other hospital staff intentionally connected the empty cylinder.
Similarly, in Bolam, the doctors or the hospital did not want to do something
wrong intentionally. At no point of time, they had a guilty mind.
9. In Dr.
Suresh Gupta’s Case [Dr.
Suresh Gupta vs. Government of N.C.T. of Delhi, August 4, 2004, Supreme Court
of India, AIR 2004 SC 4091] – Supreme Court of India, 2004 – the court
held that the legal position was quite clear and well settled that whenever a
patient died due to medical negligence, the doctor was liable in civil law for
paying the compensation. Only when the negligence was so gross and his act was
so reckless as to endanger the life of the patient, criminal law for offence
under section 304A of Indian Penal Code, 1860 will apply. The section is as
follows: 304A – Causing death by negligence – Whoever causes the death of any
person by doing any rash or negligent act not amounting to culpable homicide
shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both. Certain other sections which
are relevant for this topic are as follows: Section 80 - Accident in doing a
lawful Act – Nothing is an offence which is done by accident or misfortune, and
without any criminal intention or knowledge in the doing of a lawful act in a
lawful manner by lawful means and with proper care and caution. Section 88 -
Act not unintended to cause death, done by consent in good faith for person’s
benefit – Nothing, which is not intended to cause death, is an offence by
reason of any harm which it may cause, or be intended by the doer to cause, or
be known by the doer to be likely to cause, to any person for whose benefit it
is done in good faith, and who has given a consent, whether express or implied,
to suffer that harm, or to take the risk of that harm. Interestingly the
illustration along with this section refers to an act of a surgeon. It is as
follows: A, a surgeon, knowing that a particular operation is likely to cause
the death of Z, who suffers under a painful complaint, but not intending to cause
Z’s death, and intending, in good faith Z’s benefit, performs that operation on
Z, with Z’s consent. A has committed no offence. The court held that the
negligence has to be “gross negligence” or “recklessness” for fixing criminal
liability on a doctor. The standard of negligence is much higher as compared to
what is relevant in civil liability cases. It is not simply lack of normal
care. It has to be gross lack of competence or inaction and wanton indifference
to the patient’s safety. The court said “…where a patient’s death results
merely from error of judgment or an accident, no criminal liability should be
attached to it. Mere inadvertence or some degree of want of adequate care and
caution might create civil liability but would not suffice to hold him
criminally liable.” In Jacob Mathew, the court held that:
The moral culpability of recklessness is not
located in a desire to cause harm. It resides in the proximity of the reckless
state of mind to the state of mind present when there is an intention to cause
harm. There is, in other words, a disregard for the possible consequences. The
consequences entailed in the risk may not be wanted, and indeed the actor may
hope that they do not occur, but this hope nevertheless fails to inhibit the
taking of the risk. Certain types of violation, called optimizing violations,
may be motivated by thrill-seeking. These are clearly reckless.
10.
The Supreme Court in Jacob Mathew made it very clear as to when a
medical professional can be prosecuted under criminal law for negligence. In
the words of the court: 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. The hazard
taken by the accused doctor should be of such a nature that the injury which
resulted was most likely imminent.
Martin D’Souza’s Case [Martin F. D'Souza vs. Mohd.
Ishfaq, Supreme Court of India, 17 Feb 2009; Bench: Markandeya Katju and G. S.
Singhvi, JJ.; the judgment was delivered by Katju J.; citation: AIR 2009 SC
2049].
11. This is a
case regarding kidney transplant and medicines being administered
post-operation wherein there is a dispute about the medicine itself and the
dosage. In 1991, the patient who was suffering from chronic renal failure went
to Nanavati Hospital, Mumbai for kidney transplant. He was undergoing
haemodialysis twice a week. Later he got his kidney transplant done at Prince
Aly Khan Hospital. During his treatment at Nanavati Hospital he did not
complain of deafness. At Nanavati Hospital he was prescribed Amikacin of 500
m.g. twice a day for 14 days. Much later, the patient filed a complaint at the
National Consumer Dispute Redressal Commission, New Delhi and claimed
compensation of Rs. 12 lakhs as his hearing had been affected. He complained
that the dosage of Amikacin was excessive and caused hearing loss. The matter
finally went to the Supreme Court. Almost all earlier cases pertaining to
medical negligence have been discussed by the Supreme Court in the instant case
and it was held that the doctor and the hospital were not negligent.
Interestingly, this case very strongly defended the position of doctors vis-à-vis
the patients. The court has made an interesting observation: The law, like
medicine, is an inexact science. One cannot predict with certainty an outcome
of many cases. It depends on the particular facts and circumstances of the
case, and also the personal notions of the Judge concerned who is hearing the
case. However, the broad and general legal principles relating to medical
negligence need to be understood. Difficulties in application of Mathew
guidelines The Supreme Court observed that there were difficulties in the
application of principles as laid down in Jacob Mathew’s case. For instance:
“The practitioner must bring to his task a
reasonable degree of skill and knowledge, and must exercise a reasonable degree
of care. Neither the very highest nor a very low degree of care and competence
is what the law requires.” (as per Jacob Mathew’s case) The court observed that
it is a matter of individual understanding as to what is reasonable and what is
unreasonable. Even experts may disagree on certain issues. They may also
disagree on what is a high level of care and what is a low level of care.
The Jacob Mathew case said that “simple”
negligence may result only in civil liability, but “gross” negligence or
recklessness may result in criminal liability. Now, what is simple negligence
and what is gross negligence may not be so easy to be determined. Experts may
not agree on this because the dividing line between the two is quite thin.
Judges as lay men Thus, Martin D’Souza’s judgment held that it was very
difficult or rather impossible to understand, and therefore, define as to what
is “reasonable” and what is “simple” and what is “gross”. At one place, the
court observed: Judges are not experts in medical science, rather they are lay
men. This itself often makes it somewhat difficult for them to decide cases
relating to medical negligence. In short, the Martin D’Souza judgment is like a
confession by the judges that in cases of medical negligence, the judges are
ill-equipped to make any decision and that too on the finer aspects of “simple”
or “gross” negligence.
Police and Harassment of Doctors
12.
An interesting order passed by the Supreme Court in this case was
a warning given to police officials not to arrest or harass doctors unless the
facts clearly come within the parameters laid down in Jacob Mathew’s case. Even
a threat was given to the policemen that if they did not follow these orders
they themselves have to face legal action. Consumer Courts Another interesting
order was to all the consumer forums – district, state and national – and the
criminal courts, that before issuing notice to a doctor or a hospital, against
whom the complaint was made, the consumer forum or the criminal court must
first refer the matter to a committee of doctors and only when the committee
reports of a prima facie case of medical negligence, the notice should be
issued.
Critique
13.
These two orders were rather surprising because this would have
created hurdles in the working of the consumer courts, criminal courts as well
as police. As per the law laid down in the Consumer Protection Act, there is no
provision for a committee of doctors to first give a prima facie report. It is
agreed that in the last 10-15 years there has been a lot of harassment of
doctors and hospitals, however it does not mean that the pendulum should swing
to the other end. A balance has to be achieved and this is what precisely has
been done by another bench of the Supreme Court in Kishan Rao’s case in March
2010.
Kishan Rao’s case [V. Kishan Rao vs. Nikhil Super
Speciality Hospital, Supreme Court of India, 8 March 2010, Citation: 2010 (5)
SCR 1]
14.
Kishan Rao got his wife admitted to Nikhil Super Speciality
Hospital in Hyderabad as she was suffering from fever and complaining of chill.
She was not given any treatment for malaria. Instead she was being treated for
typhoid. She did not respond to the treatment. In a very precarious condition,
she was shifted to Yashoda hospital where she died due to cardio respiratory
arrest and malaria. Kishan Rao filed a case in the District Forum and sought
compensation for the negligence of the Nikhil hospital. The hospital delayed
filing the case sheet. Finally, the District Forum decided in favour of Kishan
Rao. Hospital appealed in the State Commission, which overturned the decision
of the District forum on the ground that there was no expert opinion to the
effect that the treatment given by the hospital was wrong or the hospital was
negligent. National Commission upheld this decision. Kishan Rao appealed in the
Supreme Court, which observed that the case was not complicated which required expert opinion as
evidence. It was a simple case of wrong treatment. The patient
complained of intermittent fever and chill and was being treated for typhoid
instead of malaria. The court held that it was not bound by the earlier
decision of the same court in Martin D’Souza’s case as that judgment was per
incuriam regarding the directions for expert opinion is concerned. The court
held that it was not necessary in all cases to seek expert opinion before
proceeding with the matter. For simple and obvious cases, the consumer courts
were free to proceed without seeking expert opinion and the instant case fell
in such a category. In Martin D’Souza the court did not follow the distinction,
as laid down in Jacob Mathew case, regarding criminal prosecution and seeking
compensation under Consumer Protection Act. Thus, the guidelines, as laid down
in Martin D’Souza, regarding expert opinion before proceeding with any case do
not hold good in consumer protection cases and that too which are quite obvious
and straightforward. Moreover, the consumer protection law has been enacted to
expedite the entire process and the idea of expert opinion at the outset shall
defeat the very purpose of the law. Hence the guidelines, as far as expert
opinion before issuing notice, are concerned need not be followed. Finally, the
Supreme Court allowed the appeal and ordered Nikhil hospital to pay the amount
to Kishan Rao as ordered by the District Forum. Critique This is a very bold
judgment in which a bench (equivalent size to the bench of Martin D’Souza’s
case – both two judges, and one judge common) held that the above mentioned
observations of Martin D’Souza’s case were per incuriam. It was held in A.R.
Antulay v. R.S. Nayak, reported in (1988) 2 SCC 602 that per incuriam are those
decisions, which are made in ignorance or forgetfulness of some inconsistent
statutory provision or of some authority binding on the court concerned, so
that in such cases some part of the decision or some step in the reasoning on
which it is based, is found, on that count to be demonstrably wrong. The court
held that it was not bound by the directions given in D’Souza’s case and expert
evidence from a committee was not required. This is really unfortunate that
contradictory judgments are being pronounced by benches of equal size in the
Supreme Court. Common man is unable to comprehend as to what is the
interpretation of law. Which judgment should a person follow: the earlier
judgment or the latter? In case he does not follow the earlier one, is he going
to be punished for contempt of court and in case he follows the earlier
judgment will it not be a mockery of the procedural and substantive law as laid
down by the legislature. The matter should be decided by a larger bench of the
Supreme Court so that there is certainty and the doctors as well as the
patients are absolutely clear about the provisions of law.
Minor Marghesh Case [Minor Marghesh K. Parikh vs. Dr.
Mayur H. Mehta, Supreme Court of India, 26 October 2010, citation: AIR 2011 SC
249]
15.
Marghesh, a minor, was admitted in Dr. Mehta’s hospital with the
complaint of loose motions. He was injected glucose saline through his right
shoulder and later through the left foot, which swelled and turned black upto
the knee. He was taken to another hospital where the doctor amputated the left
leg below the knee as he had developed gangrene. Marghesh, through his father,
filed a complaint in the State Commission and claimed compensation for the negligence
of Dr. Mehta. It was allowed. Dr. Mehta appealed in the National Commission,
where it was allowed on the basis of expert opinion of another doctor that
there could be ten other reasons for gangrene. Marghesh appealed in the Supreme
Court, which took strong objection to the National Commission’s decision based
on the solitary ground of an expert opinion and did not pay any attention to
Dr. Mehta’s conduct during the proceedings. Dr. Mehta did not produce the case
papers for six long years and did not produce a very important key doctor, who
was involved in the treatment, as a witness. The Supreme Court allowed the
appeal with the observation that the National Commission should have been much
more diligent and cautious. This judgment gives in a nutshell, most of the
recent cases decided by the Supreme Court. It is more to do with the way the
National Commission functions and also a missive as to how the consumer courts
need to exercise discretion. The facts of the case very clearly tell us that
the patient was not brought in a precarious condition to Dr. Mehta’s hospital
and the treatment given resulted in amputation of the left leg. There was no
apparent reason for this to happen and hence, Dr. Mehta and his hospital are
prima facie liable. However, the Supreme Court remanded the matter to the
National Commission to be finally decided in a speedy manner.
Problems and Suggestions Duty
16.
The idea of negligence can be understood only when there is
clarity about the duty of the doctor, assisting staff and the hospital as a
whole. In several cases, there is a problem of overlapping duties and thus, it
becomes difficult to draw a line between the duty of A and B. In any case, the
doctor is under an obligation and is directly liable for the acts performed by
him. For the assisting staff, it is the duty of the hospital and the person
himself. Both have a joint and several liability. Thus, it is advisable to have
clear-cut duties laid down for different persons. But, in practice, this is not
so easy. It cannot be done perfectly. The choice is to try doing it in an
imperfect manner or not doing it at all. Prudence says that there can be an
endevour to put in black and white the duties of different persons working in a
hospital. It provides a basic framework, which helps in deciding matters in
situations of confusion and failure.
General Practitioner vs. Specialist
17.A number of
problems arise when a general practitioner tries to treat a patient who
requires services of a specialist or a super-specialist. On the other hand,
there may be problems also in situation when the general practitioner could
have treated a patient, however, forms an opinion that he cannot do anything
and the patient must be taken to a specialist. In such cases, time may be a
crucial factor and by the time the patient is taken to a specialist, it may be
too late. In both the abovementioned situations, it is to be seen that the
general practitioner has a very critical role to play in the treatment of a
patient. Agreed that the general practitioner is not supposed to know
everything, however, it is expected that he must guide the patient properly to
the best of his ability. He has to exercise his discretion so that the patient
gets the best, at that place and at that time, taking into account the distance
of the nearest specialist, his availability and the condition of the patient.
Thus, a lot depends on the first doctor to whom the patient is taken for
treatment. There can be no hard and fast rules to be followed, however, the
doctor must make a decision in the context of the facts and circumstances.
Common sense of a trained medical expert – not of a layman – is the guiding
factor. Risk and adventure A problem often seen is the experimentation mode of
some doctors. As they might have been practising as a doctor for a very long
time, they have experience and on the basis of that experience they would like
to deviate from the standard set practice and procedure followed by others.
There is nothing wrong per se. The only problem is when it becomes an unnecessary
experimentation. Risk taking just for adventure is not acceptable. Thus, if a
doctor can perform a difficult surgery in candle light – because there is no
electricity connection – it does not make sense that he insists performing
surgery in candle light when there is power available. Thus, the level of
expertise expected is that of the ‘person having ordinary skills in the art’
and the conduct expected is that of a reasonable and prudent person. Protocol
Proper guidelines, methods, procedures and protocol must be laid down for
things which are routine or are well-known and established by experts. Such
guidelines help others in treating the patients with the well-settled methods.
Assumptions taken while giving such a treatment should also be documented.
Also, the practicing doctor need not follow it blindly. Commonsense of an expert – trained medical
practitioner – must be exercised. In case there is a failure to exercise
commonsense, it is a case of negligence. As a layman, let us take an example. A
standard procedure discusses about a treatment for certain disease prevalent in
a very cold place. Now, before administering that treatment to a patient with
that disease who recently travelled from a very cold place to a hot place, the
doctor has to take into account that the place where is treatment currently
will be given is a hot place. As common sense – of a layman – tells us, the
patient cannot, of course, be expected to cover himself with blankets and drink
lot of warm fluids. The common sense of an expert has to add on to the common
sense of a layman. Thus, the guidelines provide a certain direction and
guidance to achieve and end. In no case the guidelines should become an end in
themselves.
Paper work
18.
Law requires evidence and documentary evidence in the form of case
papers has to be meticulously prepared. The duty of the doctor is to treat the patient;
however, it is also important to document the treatment given and at times the
reason why such treatment has been given. The matters reach a court after
several months and years and by that time the only thing on which the parties
can rely in the court is the case file. The oral evidence of doctors and other
staff also adds to the evidence, however, the documentary evidence always gets
precedence, until and unless proved to be forged. It is also important to have
transparency in the system and give a copy of all the papers, reports, films,
etc. to the patient. In such a case the confidence of a patient in the hospital
and its system increases. There are, however, some doctors and hospitals who
try to keep the patient in the dark. The oft-repeated phrase is, “do you have
trust in me?” The patient is almost at the mercy of the doctor.
Electronic Records
19.
An important improvement in the paper work has been in the shape
of electronic records, which allow easy storage and retrieval. At the same
time, several copies can easily be made. There is also minimal chance of errors
creeping in as most of the items are to be selected from a drop-box. The issue
of bad handwriting, very common complaint with doctors, is also easily taken
care of. All new hospitals work with local network of computers and do not
transfer papers from one place to another. There is also no chance of losing a
paper.
Conclusion
20.
There are two possibilities in cases of negligence – either it is
negligence of the doctor or it is negligence of the staff. There may be a
possibility of negligence, both of the doctor and the staff. In most of the
cases, it will be a case of joint and several liability, and both the doctor
and the hospital will be liable. The division of liability between the two of
them will be decided according to the understanding between the two. As far as
determining negligence is considered, courts have to depend on the advice of
experts, except in cases of blatant violation of protocol and doing things
which are considered to be unreasonable and imprudent. The level of
subjectivity in such decisions is quite high and the purpose of law to be
certain and specific is defeated to a large extent.
21.
Recent decisions are a good step in the direction of making this
murky area a bit tidy, however, a lot needs to be done by the courts in the
shape of clearer judgments so that the layman can benefit. As of now, the
judgments leave a lot of room for discretion, which at times may be exercised
by different persons, including doctors and judicial officers, in an
undesirable manner. The law on the subject needs to be more precise and
certain. That will surely give a better understanding about the “reasonable
man”.
DUTY
OF CARE
I.
Negligence is simply the
failure to exercise due care. The three ingredients of negligence are as
follows:
a) The defendant owes a duty of care to the
plaintiff.
b) The defendant has breached this duty of care.
c) The plaintiff has suffered an injury due to this
breach.
II.
Medical negligence is no
different. It is only that in a medical negligence case, most often, the doctor
is the defendant.
When does a duty arise?
III.
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 tort law. In some cases, however,
though a doctor-patient relationship is not established, the courts have
imposed a duty upon the doctor. 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”
(Parmanand Kataria vs. Union of India [AIR 1989 SC 2039]). These cases are however, clearly 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.
What is the duty
owed?
IV.
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” (Laxman vs. Trimback[2]). 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
V.
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.
VI.
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 speciality and
not of any ordinary doctor. Though the courts have accepted the need to impose
a higher degree of duty on a specialist, they have refused to lower it in the
case of a novice.
VII.
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.
VIII.
We have, until now,
examined the duty of a doctor in so far as treating a patient is concerned or
in diagnosing the ailment. Doctors are, however, 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. Therefore, the duty does not extend to
disclosing all possible information in this regard. Furthermore, this duty 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.
When does the
liability arise?
IX.
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 plaintiff
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 plaintiff 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.
X.
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.
XI.
Normally, the liability
arises only when the plaintiff 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’ (meaning thereby ‘the thing
speaks for itself’) might come into play. The following are the necessary
conditions of this principle.
Complete control rests with the doctor.
XII.
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/defendant to explain how the incident
could have occurred without negligence. In the absence of any such explanation,
liability of the doctor arises.
XIII.
Normally, a doctor is
held liable for only his acts (other than cases of vicarious liability).
However, in some cases, a doctor can be held liable for the acts of another
person which injures the patient. The need for such a liability may arise when
the person committing the act may not owe a duty of care at all to the patient
or that in committing the act he has not breached any duty. A typical example
of a case where such a situation may arise is in the case of a surgery. If a
junior doctor is involved as part of the team, then his duty, as far as the
exercise of the specialist skill is concerned, is to seek the advice or help of
a senior doctor. He will have discharged his duty once he does this and will
not be liable even if he actually commits the act which causes the injury. In
such a case, it is the duty of the senior doctor to have advised him properly.
If he did not do so, then he would be the one responsible for the injury caused
to the patient, though he did not commit the act.
When there is no
liability
XIV.
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.
If, however, due consideration of all the factors was not taken, then it would
amount to an error of judgment due to negligence.
The Need for Expert Evidence in Medical Negligence Cases
XV.
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[ Dr. Karkanwaljit
Singh Saini v. Gurbax Singh and another. 2003;(I) CPJ 153 (NC)].
In this case there was a false
allegation of urinary stone not being removed as shown by a shadow in the xray
“The burden of proving the negligent act or wrong diagnosis was on the
Complainant” and the appeal was dismissed in another case of alleged medical
negligence as no expert evidence was produced [ Ns Sahota v. New Ruby Hospital and
Ors. 2000;(II) CPJ 345].
XVI.
The case discussed below is not a
case of apparent negligence on the part of the surgeon in conducting the
operation, but about the quality of the plate used for fixing the bone. In the
present case, the Complainant has not produced any expert witnesses to prove
that there was any fault in the performance of the operations. Fixation of the
bones by using plates is one of the recognized modes of treatment in the case
of fracture of the bones. If the opposite party has adopted the aforesaid
method, though subsequently the plate broke, negligence cannot be attributed to
the doctor. This is not a case where the wounds of the operation were infected
or any other complication arose. Breaking of the plate approximately 6 months
after it was placed cannot be attributed towards a negligent act of the doctor
in performing the operation. The District Forum rightly held that the
Complainant had failed to prove his case.[
Sardool Singh v. Muni Lal Chopra and another. 1999;(I) CPJ 64
(Punjab)] There is nothing on the record to suggest that there has been
any negligence and/or deficiency in service on the part of the Appellant except
the oral submission of the Respondent/Complainant. In such cases, before coming
to a positive finding, there must be expert evidence on record as has been held
both by the National Commission as well as the Apex Court [ Dr. Manjit Singh Sandhu v. Uday Kant Thakur and
others. 2002;(III) CPJ 242]. “As per the settled law, the onus
to prove that there was negligence” deficiency in service on the part of the
opposite parties, while diagnosing and treating the Complainant, lay heavily on
the Complainant. In the given facts, the Complainant has failed to discharge
the onus that was on him. The complaint was dismissed as the Complainant failed
to discharge the onus to prove negligence or deficiency in service [ Director, Rajiv Gandhi Cancer Institute and Research Centre and
Ors. 2003;(I) CPJ 305 (Delhi)]
XVII.
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. Refer 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. Refer to the decision of the National Commission in the case of
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. Followed by this,
refer to the Commission in Vaqar Mohammed Khan and Anr. vs. Dr. S. K. Tandon, II
(2000) CPJ 169 [ Marble City Hospital and
Research Centre and Ors. v. V.R. Soni. 2004;(II) CPJ 102 (MP)].
Both the lower Fora have held that there is no evidence brought on record by
the Complainant to show that there was any negligence by the Respondent while
implanting the lens in the eye of the Complainant resulting in a persistent
problem in the left eye [ Inderjeet Singh v. Dr.
Jagdeep Singh. 2004;(III) CPJ 20 (NC)].
XVIII.
The Complainant does not examine any expert on the subject to
establish his allegation of negligence on the part of the doctor. Unfortunate
though the incident is, the Complainant needs to establish negligence on the
part of the doctor to succeed in a case like this. We may observe that there is
hardly any cogent material to substantiate the allegation contained in the
petition of Complainant. Under the circumstances, we cannot but hold that the
Complainant has failed to prove the allegations against the opposite parties [ Nirmalendu Paul v. Dr. P.K. Bakshi and
anr. 2000;(III) CPJ 79]. As held by the National Commission in
Sethuraman Subramaniam Iyer vs.
Triveni Nursing Home and anr., 1998 CTJ7, in the absence of such evidence
regarding the cause of death and absence of any expert medical evidence, the
Complainants have failed to prove negligence on the part of the opposite
parties [ Surinder Kumar (Laddi) and anr. V. Dr.
Santosh Menon and Ors. 2000;(III) CPJ 517].
XIX.
In order to decide whether negligence is established 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 of 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. The duty of a medical
practitioner arises from the fact that he does something to a human being that
is likely to cause physical damage unless it is not done with proper care and
skill. 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. As per the law, a defendant charged with negligence can
clear himself if he shows that he acted in accordance with the general and
approved practice. It is not required in the discharge of his duty of care that
he should use the highest degree of skill, since this may never be acquired.
Even a deviation from normal professional practice is not necessary in all
cases evident of negligence [ Rajinder Singh v.
Batra Hospital and Medical Research Centre and Anr. 2000;(III) CPJ
558].
XX.
The Hon'ble Apex Court in V. Krishna Rao Vs.
Nikhil Super Speciality Hospital & Anr. (2010) 5 SCC 513, has laid down
that no mechanical approach can be followed by these fora. Each case has to be
judged on its own facts. If a decision is taken that in all cases medical
negligence has to be proved on the basis of expert evidence, in that event the
efficacy of the remedy provided under this Act will be unnecessarily burdened
and in many cases such remedy would be illusory.
"In the opinion of this Court, before forming
a opinion that expert's evidence is necessary, the For a under the Act must
come to a conclusion that the case is complicated enough to require the opinion
of the expert or that facts of the case, or such that it cannot be resolved by
the members of the Fora without the assistance of the expert's opinion"
"In
case, where negligence is evident, the principle of res ipsa loquitur
operates"
"in realm of diagnosis and
treatment, there is ample scope for genuine difference of opinion and a Doctor
is not negligent, merely because his conclusion differs from that of other
professional man."
2) Jacob Mathew Vs. State of Punjab & Anr. 2005- (6)
Supreme Court Cases.
"Res ipsa loquitur is a rule of evidence
which in reality belongs to the law of Torts. Inference as to negligence may be
drawn from proved circumstances by applying the rule"
Findings/Observations:
A. It is not
mandatory that, before admission of medical negligence complaint, each and
every case to be referred to the medical board. Our view dovetails from
the decision in V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr.,
2010 CTJ 868 (SC) (CP), Hon'ble Supreme Court had discussed elaborately
about need of expert opinion with reference to IMA vs VP Shanta (1995) 6
SCC 651 and JJ Merchant's case (2002) 6 SCC 635 that, The decision in Indian
Medical Association (supra) has been further explained and reiterated in
another three judge Bench decision in Dr. J. J. Merchant and others vs.
Shrinath Chaturvedi reported in (2002) 6 SCC 635.
B. The three
Judge Bench in Dr. J. J. Merchant (supra) accepted the position that it has to
be left to the discretion of Commission "to examine experts if required in
an appropriate matter. It is equally true that in cases where it is deemed fit
to examine experts, recording of evidence before a Commission may consume time. The Act specifically
empowers the Consumer Forums to follow the procedure which may not require more
time or delay the proceedings. The only caution required is to follow the said
procedure strictly." [para 19, page 645 of the report]
C. It is,
therefore, clear that the larger Bench in Dr. J. J. Merchant (supra) held that
only in appropriate cases examination of expert may be made and the matter is
left to the discretion of Commission. Therefore, the general direction given in
para 106 in D'Souza (Supra) to have expert evidence in all cases of medical
negligence is not consistent with the principle laid down by the larger bench
in paragraph 19 in Dr. J. J. Merchant (supra).
D. In view of
the aforesaid clear formulation of principles on the requirement of expert
evidence only in complicated cases, and where in its discretion, the Consumer
Fora feels it is required, the direction in paragraph 106, quoted above in
D'souza (supra) for referring all cases of medical negligence to a competent
doctor or committee of doctors specialized in the field is contrary to the
principles laid down by larger Bench of this Court on this point. In D'souza
(supra) the earlier larger Bench decision in Dr. J. J. Merchant (supra) has not
been noticed.
E. Apart from
being contrary to the aforesaid two judgments by larger Bench, the directions
in paragraph 106 in D'souza (supra) is also contrary to the provisions of the
said Act and the Rules which is the governing statute.
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