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An Analysis of tort of medical negligence in India

Negligence is doing something which a reasonable man would not do and omitting to do something which a reasonable man would do. The essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’. Every person who enters into a learned profession undertakes to bring to the exercise of it such care and skill as becomes one belonging to that profession.

A medical professional owes a duty of care towards its patients and breach of that duty results in medical negligence. A professional does not undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill; but he undertakes to bring a fair, reasonable and competent degree of skill.

Introduction
The medical profession has been considered reputed since ages because of the respect people in this profession earns. In India doctors has been given the status of god as they save our lives and always saves ourselves from various diseases. A doctor or other medical professional has a duty of care towards his patient. Breach of that duty cause damage to the patient and here results the medical negligence.

Every person who enters into a learned profession undertakes to bring to the exercise of it such care and skill as becomes one belonging to that profession. A surgeon does not undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill; but he undertakes to bring a fair, reasonable, and competent degree of skill.

One is responsible for the direct consequences of his negligent acts where he is placed in such a position with regard to another that it is obvious that if he does not use due care in his own conduct, he will cause injury to another.

Black’s Law Dictionary defines negligence to mean:

“the exercise of the standard of care that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, wilfully disregardful of others rights.”

Winfield stated that negligence as a tort is the breach of a legal duty to take care which result in damage, undesired by the defendant, to the plaintiff.[1]

Any reasonable man entering into a profession which requires a particular level of learning to be called as a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable care and caution. A doctor cannot and does not guarantee that the result of his treatment would invariably be beneficial, much less to the extent of 100% for the person operated upon.

The only assurance he gives or can be understood to have given is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence.

According to Blacks’ Law Dictionary, medical negligence is the failure to provide medical, dental or psychiatric care that is necessary to prevent or to treat serious physical or emotional injury or illness while medical malpractice is a doctor’s failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstance.

When a patient comes to a doctor for care and the doctor accepts the same, at that moment an implied duty of care arises. Medically speaking, negligence is the breach of duty owned by a doctor to his patient to exercise reasonable care and skills, resulting in some bodily, mental and in turn financial loss and disability. Medical negligence is one category of civil wrong.

The degree of skill and care required by a medical practitioner as explained in Halsbury’s Law Of England’ is:
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, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he 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, even though a body of adverse opinion also existed among medical men.

Mc Nair, J in Bolam v/s. Friern Hospital[2] observed that:
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.

The Concept Of Medical Negligence

The Apex court in Jacob Mathew v. state of Punjab[3] observed:
‘Negligence is the breach of 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 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 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.
    Whenever a person approaches another trusting him to possess certain skill, or special knowledge on a given problem the second party is under an implied legal duty to exercise due diligence as is expected to act at least in such a manner as is expected in the ordinary course from his contemporaries. So, it is not that the legal duty can only be contractual and not otherwise. Failure on the part of such a person to do something which was incumbent so, that which would be just and reasonable tantamount to negligence.
     
  2. Breach of the said duty
    There is a certainly a breach of legal duty if the person exercising the skill does something which an ordinary man would not have done or fails to do that which an ordinary prudent man would have done in a similar situation. The standards are not supposed to be of very high degree or otherwise, but just the relative kind, that is expected from man in the ordinary course of treatment.
     
  3. Consequential damage
    The wrong, the injury occasioned by such negligence is liable to be compensated in terms of money and the courts apply the well settled principles for determination of the exact liquidated amount. We must remember that no hard and fast rule can be laid down for universal application. While awarding compensation, the consumer forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles on moderation. It is for the consumer forum to decide whether the compensation awarded is reasonable, fair and proper according to the facts and circumstances of the case.

A simple lack of care, on error of judgement or an accident, is not proof of negligence on the part of a medical professional. So long as the 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.

A professional may be held liable for negligence on one of the two findings:

  1. He was not possessed of the requisite skills which he professed to have possessed.
  2. He did not exercise, with reasonable competence in the given case, the skill which he didn’t 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.

When a medical practitioner attends to his patient, he owes him following duty of care:

  1. A duty of care in deciding whether to undertake the case.
  2. A duty of care in deciding what treatment to give.;
  3. A duty of care in the administration of the treatment.
A breach of these duties gives right of action for negligence to the patients.[4]

The Standard Of Care Required: The Bolam Test

The Bolam test was first recognized in an English law case Bolam v/s Friern Hospital Management Committee[5] . facts of this case are that the claimant was undergoing electroconvulsive therapy as treatment for his mental illness. The doctor did not give any relaxant drugs and the claimant suffered a serious fracture. There was divided opinion amongst professionals as to whether relaxant drugs should be given. If they are given there is a very small risk of death, if they are not given there is a small risk of fractures. The claimant argued that the doctor breached the duty of care by not using the relaxant drugs.

It was held that the doctor did not breach the duty of care. The court stated that if a doctor has acted according to proper and accepted practice, he is not guilty of negligence.
There was considerable ambiguity on the standard of care required to be exercised by medical practitioners in order to discharge possible criminal liability arising out of their acts or omissions.

It is now a settled principle of law that a medical practitioner will bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor the very lowest degree of care and competence judged in the light of circumstances in each case is what the law requires.

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.

Bolitho Test:

Bolitho Vs. City & Hackney Health Authority [6]

Facts in brief: A child was brought to a hospital suffering from breathing abnormalities. The doctor summoned to deal with the matter never received the summon due to a low battery on her bleep. The child died as a result. The child’s mother sued for negligence, arguing that the child should have been seen and intubated.

The house of lords held that there would have to be a logical basis for the opinion not to intubate. On the facts, it was decided that not intubating the child in the particular circumstances at hand was not a negligent way to take, even though the expert opinion on the matter was divided.

The judgement given by house of lords imposes a requirement that the standard proclaimed must be justified on a logical basis and must have considered the risks and benefits of competing options. The effect of Bolitho is that the court will take a more enquiring stance to test the medical evidence offered by both parties in litigation, in order to reach its own conclusions. Prima facie, the Bolitho judgement implies that patient’s interest/autonomy is not being neglected as it was affirmed that medical specialists cannot be free to adjudicate on their own matters.

Unfortunately, medical negligence occurs every day in Indian hospitals and there are believed to be almost a million such occurrences every year. Around one in 10 patients are believed to suffer further as a result of their treatment in hospital and a proportion of these people will go on to claim personal injury compensation through a medical negligence claim.

The Bolitho test makes it possible to get quick relief as it increases the burden on the medical practitioner and thus leaves more scope for compensation. Unlike the Bolam test, the Bolitho test says that the court should not accept a defence argument as being "reasonable", "respectable" or "responsible" without first assessing whether such opinion is susceptible to logical analysis.

However, where there is a body of medical opinion which represents itself as "reasonable", "respectable" or "responsible" it will be rare for the court to be able to hold such opinion to be other than represented. The Bolitho ruling means that testimony for the medical professional who is alleged to have carried out the medical negligence can be found to be unreasonable, although this will only happen in a very small number of cases.

Indubitably Bolitho took a ‘step in right direction’ by way of its recognition of the need for judicial scrutiny, by way of its recognition of the need for judicial scrutiny, but its success is contingent upon how far ruling is exercised.

In M/S Spring Meadows Hospital Vs. Harjot Ahluwalia[7] the court observed:
‘The true position is that an error of judgement may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence.’

Remedy Available In India

Patients who are sufferer from the negligent acts of medical practitioners can seek remedy from following various laws:
  1. Compensatory action
    Complaint against doctors, staff or hospital whether private or government hospitals who committed negligence seeking monetary compensation before civil court under law of torts or law of contract, high court under constitutional law, or consumer courts under consumer protection act.

Action under the law of torts
Law of torts circumscribes the principle to compensate the victim for the injury or loss suffered by him. Since it is in the nature of civil proceeding a civil court has to be approached to seek the remedy.

Action under law of contracts
Whenever a patient approaches a private health professional for medical care, the relationship between the hospital and the patient is one of contractual in nature. The civil suit under law of contract is not maintainable unless the plaintiff proves that he availed of service of the defendant health carer for consideration and thus a contractual obligation exists between a patient and the doctor. No suit can be brought in the civil court for remedies under the law of contract without hiring the service for

Under consumer protection act, 1986
This act was enacted to provide a simpler and quicker access to redress consumer grievances. Consumer that has suffered loss or damage as a result of any deficiency of service can file a complaint under consumer protection act, 1986. The act ensures that the aggrieved consumer should be provided with remedy through its three tier quasi-judicial bodies: district forum, state commission and national commission.

Deficiency of service:
It means any fault, imperfection, shortcomings, 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 by a person in pursuance of a contract or otherwise in relation to any service.

Patient as a consumer:
In order to file a complaint against the medical practitioner under the ambit of consumer protection act 1986, the patient should justify with the definition of consumer which includes a person who have hired or availed of any services for a consideration. The element of consideration serves as a test to determine whether a patient is a consumer or not.
  1. The service must be hired by him
  2. The service should have been rendered to him.
  3. For hiring services, he must have paid or promised to pay consideration.
If services are rendered free of charge, it can’t be hired. If a patient gets free medical treatment in a government hospital or in any charitable hospital, without payment, is not a consumer.

Medical services covered by sec 2(1)(i) of the act:
To initiate action against medical practitioner under the said act, the services rendered by medical practitioner, hospital or nursing home should fall within the definition of services under section 2(1)(i) of the act. The expression ‘service’ has been defined as ‘service of any description which is made available to potential users’.

In Indian Medical Association V. V.P Shantha  the supreme court observed that the medical services rendered by the medical practitioners are covered by sec 2 (1) (i) of the act. It excludes free services or services under a contract of personal service.

Remedy under constitution of India
Constitution does not guarantee any special rights to the patient. The patient’s rights are derivative rights, which emanates from the obligation of the health care provider. The right to life under article 21 includes the right to health and medical treatment. the right to life would be meaningless unless medical care is assured to a sick person. Wherever there is infringement of right to life and personal liberty the person aggrieved or any public spiritual individual can move the supreme court or high court by appropriate proceedings for the enforcement of rights so infringed by the state action. The courts are empowered to grant compensatory relief if the state fails to preserve the life or liberty of the citizen. The courts are under obligation to protect the rights of the citizens, since the courts and laws are made for the people.

Any person whose right has been infringed can move to supreme court under article 32 of the constitution. The supreme court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warrant and certiorari, whichever may be appropriate, for the enforcement.

Similarly, one can move the high court by appropriate proceedings for the enforcement of the rights conferred and guaranteed under the constitution and other laws. (art 226).
2. Punitive action
Criminal complaint against the doctor under Indian penal code
The main object of the criminal law is not to award damages but to ensure that the doctor is put behind bars for his negligent acts. However, under criminal procedure code, the court may award compensation to the aggrieved party out of the fine amount collected from accused. In MARI SINGH AND STATE OF HARYANA VS. SUKHBIR SINGH[8] the supreme court directed all the criminal courts to exercise the power of awarding compensation to victims of offence in liberal way that the victims or their legal representatives may not have to rush to the civil courts for compensation. It may be argued that incidentally Indian penal code 1860 does not specify the crime of medical negligence, nonetheless, negligent act of doctor causing hurt, grievous hurt or death has been brought within the ambit of the provisions of Indian penal code.

Prosecution under section 304A of IPC:
Doctors can be prosecuted for an offence of which rashness or negligence is an essential ingredient, but they are to be protected from frivolous and unjust prosecutions.
  1. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting unjust compensation. Such malicious proceedings have to be guarded against
  2. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of accused doctor.
  3. The investigating officer, before proceeding against the doctor should obtain an independent and competent medical opinion preferably from a doctor in govt. service.
  4. A doctor may not be arrested in routine, unless his arrest is necessary for furthering the investigation or for collecting evidence or the doctor would not make himself available to face prosecution unless arrested.
  5. Section 312 to 316 (causing miscarriage), section 319 to 322 (causing grievous hurt), section 336 to 339 (act of endangering life or personal safety of others) section 345 (wrongful confinement) of the Indian penal code directly and indirectly deals with criminal medical negligence.

3. Disciplinary action
Complaint seeking disciplinary action against the medical practitioner or the hospitals as the case may be, before statutory bodies governing the medical practitioners such as Indian medical council or state medical council.

Complaint before medical council of India
The medical council of India grants recognition to medical degrees granted by universities or medical institutions in India and such other qualifications granted by medical institutions in foreign countries. It lays down and prescribes the minimum standard of medical education required for granting recognition to the degrees awarded by universities in India.

Furthermore, the council is empowered to have disciplinary control over the medical practitioner including the power to remove the names of medical practitioners permanently or for a specific period from the medical registers when after due enquiry they are found to have been guilty of serious professional misconduct.

Grounds to initiate disciplinary action against medical practitioner
It includes conviction of any offence by a court of law and guilty of professional misconduct.

Any conduct of the practitioner which brings in disgrace to the professional status what is known to be ‘serious professional misconduct’ for e.g. adultery or improper conduct or association with a patient, conviction by a court of law for offences involving moral turpitude, issuing false certificates, reports and other documents; issuing certificate of efficiency in modern medicine to unqualified person or non-medical person; performing an abortion or illegal operation for which there is no medical, surgical indication, revealing identity of patient without his permission; performing an operation which results in sterility, without obtaining the written consent of patient/ relative and refusing on religious grounds alone to extend medical assistance etc.

Procedure
Proceedings is initiated by the council
  1. when a medical practitioner has been convicted by a court of law
  2. when a complaint is lodged by any person or body against the practitioner.

Complaint is then placed before the sub-committee or the executive committee which considers the complaint, causes, further investigation and takes legal advice. If no prima facie case is made out the complainant is communicated about the same.

If prima facie case is established, issuance of notice to the practitioner specifying the nature and particulars of the charge and directing him to answer the charge in writing and to appear before the committee on the appointed day.

4. Recommendatory action
Complaint before human right commission.

Irrespective of different remedies discussed above there is yet an alternate mechanism for the protection of patient’s rights under the national and state human rights commissions (NHRC and SHRC). Patients can file complaints regarding violation of human rights before NHRC/SHRC as the case may be. NHRC/ SHRC then seeks explanations from the governments for such violations and can also initiate proceedings including independent investigation, issuance of summons to witness. Examination on oath etc. it persuades the state to pay compensation to the victims, patients and also recommends grant of interim relief to the victim or his/her family.

Conclusions And Suggestion
The above discussion on medical negligence reflects that how a patient who intends to sue a doctor or hospital for medical negligence have different mechanism available under constitution and various statutes. In our country an aggrieved patient can resort to remedies available under the consumer protection act 1986 as well as under constitution to protect his right to health.

Suggestions:
  1. Doctors should be enlightened on the nature of duties and the implication of these duties.
  2. Patients should be made aware of their rights when they suffer any injury because of negligence on the part of doctors or health care professionals. They should be properly educated as to their remedies available to them in any case of breach of duty on the part of health care professionals.

Bibliography
Books And Articles
  1. Supreme court judgement on criminal medical negligence: a challenge to the profession by M R Hariharan Nair (https://doi.org/10.20529/IJME.2005.056
  2. Test of medical negligence by kiruthikadhana pal (legalservicesindia.com)
  3. Law of torts by RK BANGIA; Allahabad law agency publishers.
  4. Veracity of laws relating to medical malpractice in India by Aditya Singhal
    International Journal of Scientific and Research Publications (ISSN: 2250-3153)
  5. Medical negligence and remedies to patients
    (Astrea legal associates LLP)
  6. Breach of duty of care in medical negligence: scope and limitation By Babatunde, Rashidat Aderayo
Statutes
  • Consumer protection act, 1986
  • Indian penal code, 1860
  • Criminal procedure code 1973
End-Notes:
  1. Rogers, W.V.H, Winfield and Jolowicz on Tort, (17th Edn., Sweet and Maxwell International Student Edition, 1998) p.90
  2. (1957) 2 AllER 118
  3. AIR 2005 SC 3180
  4. Philips India ltd. Vs Kunju punnu AIR 1975 Bom 306
  5. 1957 1 WLR 582
  6. (1997) 4 ALL ER 771
  7. (1998) 4 SCC 39
  8. 1988 SC 2127; 1989 Cr.L.J. J 116 (SC)

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