The term Negligence has been derived from a Latin term negligentia, which basically means failing to pick up. Since, it does not have any specific definition, it can be roughly defined as:
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.

Going by this definition, it is quite clear that there is something called a duty of care, which when breached constitutes a tort of negligence. So, what exactly does duty of care means?

As discussed earlier, the concept of duty of care was evolved for the very first time in the landmark case of Donoghue v Stevenson, where the plaintiff found a snail in the can of ginger beer and thus filed a case against the defendant. Before the judgment in this case, there was no concept of duty and care and plaintiff could only bring a case if a contract had been breached.

Hence, this case holds a profound value today also and the reasoning provided by the initiated, Lord Atkin i.e., also k/a the neighborhood principle was proven as the firm bedrock of the principle of duty of care. The neighborhood principle goes like, a person must take a reasonable care to avert such foreseeable acts or omissions, which holds the capacity to injure his/her neighbor, a neighbor in this context can be defined as a person who directly get affected by the aforementioned acts or omissions.

Needless to say, to avoid the breach of duty of care towards the neighbor, that duty has to exist in the first place. Along with that, the plaintiff must have suffered a damage also to avail the tort of negligence.

To sum it up, the following three conditions must be satisfied in order to establish the tort of negligence:

1. There must exist a duty of care, which is owed by the defendant to the complainant;
2. That standard duty of care must be violated by the defendant; and
3. A legally recognized damage should be suffered by the plaintiff, as a result of the concerned breach of duty.

This could be understood more comprehensively through the comparison of two cases, before and after the introduction of the principle of duty of care, which would simultaneously explicate the need of the principle also.

The first case is Winterbottom v Wright (1842), in this case, the defendant had contracted with the Postmaster General to keep a horse drawn mail coach in a safe and secure state. However, the Postmaster had contracted with Winterbottom (plaintiff) also to drive the same coach as directed by him. While driving, the coach broke down due to the lack of repair work and plaintiff filed a case against the defendant. The court held that, since there existed no legal contract between the plaintiff and the defendant, therefore Winterbottom have to right to sue Wright (defendant).

The second case is Grant v Australian Knitting Mills (1935), in this case, the plaintiff (Dr. Grant) purchased two sets of underwear manufactured by AKM (defendant). Later, the plaintiff developed severe skin disorder and consequently was hospitalized for a year as the bisulfate chemical was not properly rinsed from the garment by the defendant. The court held that there was a duty of care between Dr. Grant and AKM and undoubtedly, AKM had breached that duty due to which the plaintiff had to suffer severe damage. Hence, the defendant was made liable for the tort of negligence.

The noteworthy point in the aforementioned cases is the reasoning behind the judgment. In the first case, evidently, Wright had acted negligently but since the neighborhood principle was not introduced till then, the court applied the principle of privity of contract. Another case very much similar in facts and court being cognizant of the judgment of Donoghue v Stevenson, applied the principle of duty of care and made the defendant liable for the negligent act.

Duty of Care in the Medical Profession
Whether it is medical or any other profession, as per the Law of torts, Dr. R.K. Bangia (Twenty-first Edition 2008), a professional may be held liable for negligence based on one of the two findings listed below:

1. Either he lacked the necessary skill, which he claimed to have possessed; or
2. He did not exercise the skill with reasonable care.

Additionally, Bolam test was laid down in the case of Bolam v Friern Hospital Management Committee [1957], where the patient (plaintiff) filed a case against FHMC, whose employed doctor did not give the muscle relaxant drugs before giving the electro-convulsive therapy to the plaintiff, due to which, he suffered several injuries. The court held the doctor not liable on the basis of the landmark rational as put forward by McNair J:
A man is neither required to possess or practice any special skill nor he has to be an apostle in his profession. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. Mere exercising an ordinary skill does not amount to breach of duty of care.

Although in the case of Hucks v. Cole (1968), where the doctor refused to treat the patient with penicillin, who was suffering from some septic spots on skin, the doctor as made liable yet the opinion of Lord Denning:
A medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field was taken as a reference for future cases.

Another paramount rationale was laid down in the case of Maynard v. West Midlands Regional Health Authority (1985). In this case Lord Scarman reasoned that:
If a body professional opinion, equally competent has supported the act of the medical practitioner and would have performed the same as that practitioner than it is enough to clear the possibility of negligence in such case. Similar thing was held by the Supreme Court of India in the case of Dr Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole also.

Charlesworth & Percy in their celebrated work on Negligence has very beautifully summed up all the salient points to establish the liability for negligence in medical profession. The points are as follows

1. There exists a usual or normal practice for any concerned case
2. The medical practitioner has failed to perform it; and,
3. No professional man with ordinary skill would have taken the course as adopted by the doctor.

Now, applying the 3 set necessary conditions in the following case of Smt.Santra v. State of Haryana, Smt. Santra underwent a surgery for sterilization but the medical practitioner operated only fallopian tube and left the second one unattended. Later, the poor woman (plaintiff) already nurturing 8 children got pregnant.

Here, a normal practice for the operation was existing, the doctor failed to perform that ordinary practice and obviously no other professional would have left a fallopian tube untouched in the operation of sterilization. Hence, this was a clear-cut case of medical negligence as all the pre mentioned 3 conditions were satisfied and thus, the Apex court ordered to grant the compensation to the lady.

Res ipsa loquitur and Medical Negligence
Res ipsa loquitur is a Latin maxim, which means The thing speaks for itself. It is applied, when no additional proof is required and the accident itself works as a sufficient evidence. However, in the case of medical negligence, following conditions were considered by the court as happened in the case of Dr Janak Kantimathi Nathan v. Murlidhar Eknath Masane.

1. There should be sufficient evidence that the situation was unexpected;
2. The situation was not possible without a negligent act and lapses on the part of the medical practitioner; and,
3. Doctor and not any other person was negligent.

In the case of Ratcliffe v Plymouth and Torbay Health Authority [1998], the court laid down another exemplary principle, Res ipsa loquitur is not a principle of law and it does not relate to or raise any presumption. It is merely a guide to help identify when a prima facie case is being made out. Where expert and factual evidence is being called on both sides at trial its usefulness will normally have been long since exhausted.

Once the above mentioned three conditions are fulfilled, the court may draw an inference of negligence against the defendant and consequently the burden of proof shifts to the part of defendant.

In the case of Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Ors, where a hospital was held liable and the plaintiff was granted Rs.1,00,00,000/- as a compensation because the plaintiff got infected with acute paraplegia with an entire loss of control over his lower limbs due to the negligent act of the doctor, it was observed that:
once the preliminary burden has been dispensed by the aggrieved patient by establishing a case of medical negligence by the medical practitioner or the hospital related to, the burden of proof subsequently shifts on to the medical practitioners treating the patient or the hospital and it is for them to convince the court that there was no negligence or violation of duties on their part.

Role of Consumer Protection Act, 1986
Concerning medical negligence, patients are given right under the Consumer Protection Act, 1986 to file a case. The act was passed with an aim to enhance security to the consumers and to provide more provisions for the consumer disputes settlement and other disputes associated with that.

Section 14(1)(d) of this act states that, any consumer who has suffered loss or injury due to the negligence on the part of the opposite party will be compensated accordingly.

Initially it was disputed whether this would cover the medical profession or not? Supreme Court in the case of Indian Medical Association v. V.P. Shantha, brought medical profession and services under the purview of this act.

However, the act is not totally against the medical practitioners and provide defense to them under Section 2 (1)(0), it states that:
service means service of any description which is made available to potential 2 [users and includes, but not limited to, the provision of] facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 3 [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. which basically means, if the doctor does not charge any fee for his service than that work would not be counted as a service as per this section and hence, would not come under the ambit of this act.

Conclusion
Incidents of medical negligence are burgeoning like anything, which makes it a well demanded topic. Negligence is proven when a person breaches the existing duty of care towards his/her neighbor which results in further injury to the latter. Keeping this concept at the bedrock, various new principles were placed on after another on it, in the field of medical negligence.

The crux of all the profound judgments was put forward by Charlesworth & Percy, which are followed till date. Consumer Act, 1986 was passed to improve the security of the consumer with an exception as Section 2 (1) (0), according to which, doctors are not made liable.

Award Winning Article Is Written By: Mr.Rishabh Shukla

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