Introduction

Medical profession is among one of the pious and noblest professions. Doctors are considered parallel to all mighty as they deal with human life which is of the highest importance. Gone are the days were the relation between a doctor and his patient was governed by mutual trust, now it is covered within the ambit of contract for service where a doctor has to obtain prior informed consent before undergoing any therapeutic treatment or carrying out any diagnostic test.  A doctor owes certain duties towards his patients and breach of any of those duties constitutes a cause of action against doctor for negligence and the patient who suffered loss can seek redressal of grievances from the consumer courts. The law hasn’t prescribed the maximum limits of standards that can be embraced but only minimal standard below which the patients cannot be treated. In cases of medical negligence matters are brought before the court of law and judges are expected to decide. However, it is difficult to determine the negligence of doctors by judges as they are not trained in the field of medical science. Their decisions are mostly found on expert’s opinion and on the basic principles of law. Reasonableness and prudence play a vital role while deciding the case.

Medical Negligence

Firstly, Negligence may be defined as a breach of duty which results in undesired damage to the plaintiff, due to lack of reasonable care which a prudent or a reasonable man would have taken in a given circumstances. Negligence is an offence under law of Torts, Indian Contract Act, Consumer Protection Act, Indian Penal code.

Medical negligence also referred to as medical malpractice may be defined as an act or omission (failure to act) by a medical professional that strays from the required medical standard of care. Doctor can be held liable for negligence on one of the two findings that either the Doctor was not possessed of the requisite skill which he professed to have or he did not exercise the skill which he did possess, with reasonable competence in a given case.

Negligence becomes malpractice when due to lack of carelessness in the part of doctor; injury is caused to a concerned patient resulting in unexpected complications.  For example negligence might be the result of errors in diagnosis, treatment, health management or after care of the patient.

BOLAM’s rule has been adopted by the Supreme Court in the case of Jacob Mathew vs. State of Punjab 2005, as the benchmark to assess the Medical Negligence. In case of Bolam Vs. Friern Hospital Management Committee (1957), the house of lords formulated the Bolam’s rule as: “A doctor 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. Putting it another way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.”[i]

Bolam test is one of the fourfold stage in determining the medical negligence. There are other 3 essentials which needs to proved by the plaintiff to constitute an offence of medical negligence.

1.      The doctor owed a duty of care to the patient

2.      Breach in performance duty of care

3.      Injury or harm caused due to breach of duty and resulted in significant damages 

Duty of Care towards plaintiff

To understand the scope of negligence, it is important to understand the scope of the duty inflicted on a doctor or a medical practitioner. A doctor or a medical practitioner, has a duty of care in deciding whether to undertake the case or not, duty of deciding what treatment to give, duty of care in administration of that treatment, duty not to undertake any procedure which is beyond his or her mastery, and it is expected by the practitioner to profess the skills and knowledge he possess accompanied with reasonable degree of care.

In the case of Laxman Balkrishna Joshi  vs. Dr. Trimbak Bapu Godbole AIR 1969

 In this case, the patient died due to fat embolism, which resulted due to negligence of doctor without taking the basic precaution by giving anaesthetic to the patient. The doctor was held guilty of negligence and was liable for damages. The Court held that a person who holds himself competent to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when approached by a patient owes him certain aforesaid duties. And such duty must be performed with due care and negligence.[ii]

Breach in performance of duty

 To hold the defendant liable for negligence, plaintiff must not only prove that the defendant (doctor) owed the duty of care to the plaintiff (patient) but he must be in breach of such duty. A Test to determine whether there has been a breach of duty was laid down in Blyth vs. Birmingham Waterworks co case, wherein it was held that “negligence can be defined as a breach of 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.”[iii]

Breach of duty resulted in consequential damage

There must be a close connection between breach of duty and injury caused for fastening the liability of negligence and the cause must either be direct or proximate. The plaintiff must proof that the injury or harm was the result of negligence in part of the doctor.

Postgraduate Institute of Medical Education and Research vs. Jaspal Singh (2009)

In this case patient with about 50% burns died 40 days after the date of incorrect blood type transfusion in spite of receiving substantial care, post detection of error, the finding of medical negligence could not be avoided as the connection between the transfusion of incorrect blood type and death was proximate.[iv]

In the case of Jacob Mathew vs. State of Punjab, an aged patient with an advanced stage of cancer was having difficulty in breathing and the oxygen cylinder connected to his mouth was found to be empty. By the time replacement could be made, the patient had already died. The hospital treating the patient held guilty of negligence under civil liability.

Types of medical negligence

Medical negligence can occur in many ways. Any kind of deviation from required standard of treatment or care which would result in harm or injury to a concerned patient would constitute negligent behaviour and the operating doctor or the staff or the hospital and be held liable for the same. Some cases which are often reported are as follows-

1.      Improper diagnosis or delay in diagnosis

2.      Improper/ Wrong medications

3.      Childbirth malpractice

4.      Error in administration of Anaesthesia or any muscle relaxant

5.      Errors in surgery or unnecessary surgery

6.      Falling to recognise or treat complications post surgery

Burden of Proof lies on whom in cases pertaining to medical negligence

Burden of proof is correspondingly high on aggrieved party who alleges negligence against the doctor. Accusation of professional negligence against a doctor is different from a accusation of negligence of driver of a vehicle. A doctor simply cannot be held liable for minute mistakes. A Judge can find a doctor guilty only when it is proved that he has fallen short of a standard of reasonable medical care but it must be proved by way of evidence or material on record.  It is incumbent for the Complainant to prove the negligence or deficiency in service by producing expert evidence or opinion and this fact is to be proved beyond all reasonable doubt. Mere allegation of negligence will be of no help to the Complainant.[v]

What doesn’t constitute medical negligence?

It has been held by the National Commission as well as Supreme Court in various judgements that a charge of Professional negligence is in contrast from the charge of negligence of a driver. A doctor cannot be held liable in all the cases where a patient suffers an injury or if the end result doesn’t turn out the way it was expected to. This doesn’t prove the breach of duty of care. A doctor cannot be held liable for a mere judgement simply because a patient has not responded positively to the medications or therapy as recommend by the doctor. Error of judgement can either be a mere error of judgement or error of judgement due to negligence. Only in former case, it has been recognised by the courts as not being a breach of duty. For example, a failure in surgery or adoption of riskier form of treatment which didn’t produce a preferred result will not amount to medical negligence. However, if due consideration of all factors was not taken, then it would amount to error of judgement due to negligence.

In the case of Akhil Prasad Jain vs lalan Prasad Jain

 The Supreme Court and the National Commission held that the skill of a medical practitioner might differ from doctor to doctor and it is requisite for the Complainant to prove that the Appellant (doctor) was negligent in the line of treatment that followed the loss of eyesight. A Judge can find a doctor at fault only when it is evident that he has fallen short of expected reasonable medical care. The fact and circumstances of the case show that the doctor has attended the patient with due care, skill, and diligence. Simply because the patient’s eyesight was not restored satisfactorily, this alone cannot be a ground for holding the doctor guilty of negligence and inefficient in his duty.

In the case of Dr. Ganesh Prasad V. Lal Janamajay Nath Shahdeo, the National Commission quoted the principle that where proper treatment is given, death occurring due to disease and its complication, it cannot be held that doctors and hospitals are negligent and orders of lower forum do not uphold the claim and award compensation. In this case, a 4 and a half year old child was given a life-saving injection who was suffering from cerebral malaria. As opined by the child specialist, doses were safe and the treatment given was adequate. Though the death of the child is unfortunate, it cannot be said that there was negligence on the part of the doctor.

Liabilities resulting from Medical Negligence

Consumer protection Act 1986

Consumer protection act intends to better protect the interest by providing easy dispute resolution tribunals at district and nationals levels. It promotes and protects the rights of the consumers by providing provisions for establishment Consumer Councils for settlement of consumer disputes.

Sec 14 (1) (d) of the Act provides for the compensation to the consumer who has suffered any loss or injury due to negligent behaviour of the opposite party. This section includes medical practitioner, doctors and hospitals in its ambit.

Indian Medical Association Vs. P.V. Shantha & ors.  Is one of the landmark cases where Supreme Court brought the medical profession within the ambit of Consumer Protection Act.

Court declared that the services rendered by medical professional shall now be treated as “service” under Sec 2(1)(o) of the Consumer Protection Act and it will be a “contract for service” unlike “contract of service” which constitutes Master-servant relationship. This defined the relationship between a doctor and patient as a contractual one. Patient if suffered any injury in due course of treatment can now sue doctors for compensation in consumer protection courts.

Civil Liability

Negligence is tort and tort is a civil wrong. Civil liability for medical negligence may be assigned either to a doctor or a hospital when any act or omission by them cause injury to a patient, a hospital may also be held liable for the damage caused by negligence of its staff i.e doctors, nurses and other employee. A doctor who runs a private medical institution bears the liability individually and is obliged to pay damages if any to his patient if he suffers injury in connection with the treatment.

In the case of Jacob Mathew vs. state of Punjab, where the patient who was in last stage cancer died due to non-availability of oxygen cylinder, the complainant, son of the patient alleged that the doctor lacked skills and knowledge to treat the patient whom he agreed to treat which resulted in death of his father. The Supreme Court using the Bolam’s Parameter held the appellant liable under civil law and said he cannot be proceeded under criminal liability as the death occurred due to non availability of oxygen cylinder.

The Indian Medical Council Act 1956

Medical negligence cases in India are often dealt by the Indian Medical Council where the doctors are registered. The professional incompetence of doctors is judged by a group of expert doctors. The punishment provided by the Indian Medical Council ranges from warning to doctor who is found guilty to removing the name of the doctor from State Medical register/ Indian Medical register for a specific period of time.

Criminal Liability

In order to attract criminal liability, the degree of negligence has to be higher in comparison to degree of negligence enough to fasten liability under civil laws. Mens rea is one of the requisite ingredients in criminal law. It is important to prove the guilty mind or an evil intention to hold a person liable. In case of medical negligence of a doctor, whether slight or gross, it is difficult to prove the guilty mind and intentionally negligent behaviour of a doctor.

Sec 304-A of Indian Penal Code, 1860   states that  “whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term which may extend to two years, or with a fine or with both.”

Sec 80 of IPC (accident in doing a lawful act) – nothing is an offense 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.

Sec 88 of IPC (act not unintended to cause death, done by consent in good faith for person’s benefit)-  a person cannot be held accused of an offense if she/ he discharges an act in good faith for the other’s benefit, does not intend to cause harm even if there is a danger, and the patient has explicitly or implicitly given consent to suffer or take the risk of that harm.

In Dr. Suresh gupta case Supreme Court held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was held liable under civil law for paying the compensation. Negligence has to be a ‘gross negligence’ or ‘recklessness’ for fixing a criminal liability on a doctor. Where a patient’s death occurs merely from error of judgement or an accident no criminal liability should be attached to it. 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.[vi] In Bolams cases doctors or the hospital did not want to do something wrong intentionally. At no point of time they had guilty mind. In Jacob Mathew case neither the doctor nor the hospital staff intentionally connected empty cylinder. For civil liability, only damages can be imposed by the Court but for criminal liability the Doctor can also be sent to jail (apart from damages). However, what is simple negligence and what is gross negligence may be a matter of controversy even among experts.

Conclusion

Both the doctor and the patient owe certain duties to each other. The responsibility of doctor is to discharge his duty with due care and diligence. A patient’s responsibility on the other hand is to cooperate with the professional in discharging his duties. Minute negligence can be described as the recognition in law of a human fallibility in all spheres of life. From the above judgements it can be inferred that a doctor can be held liable only in a case where the failure of treatment is attributable to his negligence and not otherwise. The courts have dealt with the issues related to medical negligence cases in a holistic manner and with paramount consideration. There is also a need of statutory regulations framed by the government of Indian in consultation with Indian Medical Council containing guidelines in order to make rash negligence an ingredient under criminal liability in order to safeguard interests and rights of patients.