"An ambiguous law is a dangerous one because it allows for the concept to be
misused, neglected or worse, weaponised.
" -- Aysha Taryam
Judicial scrutiny of a medical treatment or management of a disease episode for
negligence is based on legal principles, postulates or fictions evolved by the
learned legal luminaries. Lack of medical knowledge has necessitated the
application of the legal fictions to judge negligence in medical management of a
case. These are, however, to be applied on the basis of medical evidence. The
medical science has grown and advanced to a level that was unimaginable just 25
years back. The legal principles, however, remains basically the same, except
for the semantic variations introduced by each subsequent judicial forum. There
is urgent need to suitably modify the applicability of these age old legal
fictions to judge medical negligence.
This is what their Lordships on the Three Judge Bench in Jacob Mathew vs State
Of Punjab & Anr on 5 August, 2005, stated:-
"Negligence as a tort. The jurisprudential concept of negligence defies any
precise definition. Eminent jurists and leading judgments have assigned various
meanings to negligence. The concept as has been acceptable to Indian
jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal
(Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at
p.441-442) "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.
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."
The essential components of negligence, as recognized, are three:
"breach" and "resulting damage", that is to say:
- the existence of a duty to take care, which is owed by the defendant to the complainant;
- the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
- damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant.
The elaborate exposition of negligence law in Jacob Mathew, however, failed to
erase the ambiguity in the espoused legal principles, as pointed out in
subsequent two Judge Bench in Martin F. D' Souza vs Mohd. Ishfaq on 17 February,
"30. The general principles on this subject have been lucidly and elaborately
explained in the three Judge Bench decision of this Court in Jacob Mathew vs.
State of Punjab and Anr. (2005) 6 SCC 1. However, difficulties arise in the
application of those general principles to specific cases.
31. For instance, in para 41 of the aforesaid decision it was observed :
"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."
32. Now what is reasonable and what is unreasonable is a matter on which even
experts may disagree. Also, they may disagree on what is a high level of care
and what is a low level of care.
33. To give another example, in paragraph 12 to 16 of Jacob Mathew's case
(Supra), it has been stated that simple negligence may result only in civil
liability, but gross negligence or recklessness may result in criminal liability
as well. 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 which
may be imposed on him in a civil suit or by the Consumer Fora). However, what is
simple negligence and what is gross negligence may be a matter of dispute even
34. 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."
This two Judge Bench, inspite of their elaborate and eloquent deliberation,
added little to the clarity of the legal principles when applied to complex
Take for instance the basic legal principle 'Duty of Care'.
Duty is well defined as legal obligation of a licensed medical professional, to
attend on and treat a patient, when approached.
However the same is not true of Care.
The care or level of care, scope of care like medical skill, is an intangible
postulate. To be verified objectively it has to be in, assessable tangible
Care or scope of care to a medical man, is, timely fulfillment of diagnostic and
therapeutic medical needs of an individual for a particular disease episode.
This means that a patient must be examined, duly diagnosed, his medical needs
assessed, and interventions to meet those medical needs done in due time.
Catering to the diagnostic and therapeutic needs of the patient are the two
criteria of care. This can be objectively verified only from the patient record
that is faithfully maintained as per the guidelines. Medical record is the
record of the acts or conduct of the treating physician apropos that particular
patient. It should not be assessed on the basis of subjective notion of the
judicial officer. Verification of a faithfully maintained medical record,
detailing the treatment given is the proof positive of that the physician has
cared for the patient.
A Deficiencies and error of judgment will invariably be pointed out,
retrospectively, by more experienced medical experts since medical skills are
part of a learning curve that continues throughout one's professional life and
comprise innumerable learning points.
Deficiency in care is not carelessness, and hence, not negligence. Deficiency is
A faithfully maintained treatment record of the patient shows the good faith of
the doctor. A record of what he did and honestly believed to be appropriate for
the medical needs of the patient.
The other legal principle is of 'competence'. How would a physician evidence
before a court of law that he was professionally competent? And that he acted
with due competence?
Competence in a particular medical act is defined as the possession of adequate
knowledge concerning the said medical act carried and adequate skill in its
The basic degree of Bachelor of Medicine and Bachelor of Surgery (MB BS) is
awarded after a candidate's knowledge of the subject and possession of basic
skills is assessed by competent medical examiners and who are, as a result of
this assessment, satisfied that the candidate possesses the requisite knowledge
and skill commensurate with the degree.
A doctor has to register his MBBS degree with the Medical Council to get a
license that certifies that the doctor possesses basic medical knowledge and
surgical skills to practice medicine.
For specialization and super specialization, an MBBS doctor, possessing basic
skills, has to undergo training as specified by the Medical Council to acquire
knowledge and skill commensurate with the higher degree or diploma to be
awarded. The acquired specialty or the super specialty diploma, MD, MS, MCh etc,
has then to be registered with the Medical Council to be licensed to practice in
the field of their certified expertise. Licensing is certifying their competence
to practice as specialists. Verification of license is the only way a doctor can
prove that he is competent, and the only objective basis on which courts can
Level of care is another ill-defined piece of legal fiction that is applied
through the arguably antiquated, outdated and outlandish Bolam Test (What a
person of ordinary prudence would do). "Level of care" does not translate to
quality of care. In terms of diagnosis, monitoring and therapy, level of care is
facility- dependent. As the level of diagnostic, monitoring and therapeutic
facilities rises, so does the level of care.
What can and should be evaluated are how the physician appropriately or
prudently used the facilities that were available to him. Level of care is
context- specific and these high tech facilities are not universally available.
Besides, the availability or use of such facilities are not, by themselves,
indices of quality care inasmuch as they may have been inducted (and exploited)
by greedy facility providers principally for profit.
Thus, the requisite knowledge, skill and level of expertise cannot not be
subjectively assessed. All the judiciary can do is to verify that the physician
in question is in possession of verifiable certification by the Medical Council
to practise in his professed field of medicine.
Caution. This again, as a general postulate, is an abstract, intangible
proposition. Caution is anticipation of possible adverse consequences of a
particular intervention and the preparedness to prevent and deal with them.
Exercising caution is an integral part of acquired skills be they surgical
(while operating) of non-surgical. Caution is imparted as a part of training and
is developed by practice as part of a life-long learning experience.
Verification of a duly executed informed consent, detailing the possible adverse
consequences, is proof positive that the physician was conscious and aware of
the adverse consequences and had communicated to the patient that he will take
care of it to the best of his ability.
It is submitted that once the competence of medical professional and the consent
for intervention is verified, a medical professional should be given the benefit
of good faith as provided in law (IPC Sec 88 and other related 'Exemption
Clauses') and should be out of the purview of the consumer fora. He should be
prosecuted for malafide acts only.
Sec 3(22) of the General Clauses Act 1897
A thing shall be deemed to be done in "good faith" where it is in fact done
honestly, whether it is done negligently or not.
Sec.80 IPC. Accident in doing a lawful act. - Nothing is an offence which 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.
IPC 88. Act not intended to cause death, done by consent in good faith for
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 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
The statutory provisions thus provide a medical man exemption from the liability
if the medical intervention is done with due consent and for the benefit of the
person, provided of course, that there is no evidence to doubt or question about
the beneficial intent. In case of malafide intent, or act beyond the scope of
his expertise (jurisdiction), benefit of good faith will not be available to a
medical person, as is not available to the judicial officer.
Frivolous negligence claims and perverse medical negligence judgments based on
ill-applied legal fictions, without cogent medical findings, has greatly
corroded the faith of public in the medical profession. It is high time that
credence to 'good faith' doctrine is given and recognized to restore public
faith in practitioners of modern medicine.
Written By: Dr.Shri Gopal Kabra
15, Vijaya Nagar, D-block, Malviya Nagar, Jaipur-302017
Ph no: 8003516198