Super-Specialized Medical care and advanced equipment are the acknowledged
services in a well of corporate hospital. A Patient's ability to afford the best
medical care differentiates from the Ordinary level of reasonable care under Bolam test. The Bolam test standard of assessing the level of care of corporate
hospitals lacks behind the times. Hence the research will conclude the with key
findings and crucial reasons for incorporating reform in Bolam Test.
is defined as the breach of duty owed by a doctor to
his patient to exercise a reasonable degree of care and skill resulting into
some physical, mental or financial harms or disability. Medical negligence in
India is examined using Bolam Test
which was developed in Friern
Management Hospital v. Bolam
. Justice McNair stated that the charge in
the case derives a doctor is not guilty of negligence if he or she acted in
accordance with the practice accepted as proper by a responsible body of doctors
skilled in the relevant field of practice.
Corporate Regime Of Hospitals
In the present times the second wave of Covid 19 pandemic has taken the whole
country by surprise. Hospitals in Delhi say they only have enough oxygen for 24
hours as reported after the oxygen tanker leak in Nasik causing death of
patients admitted in Zakir Hussain NMC Hospital due to stoppage of oxygen
"The country on the one hand is witnessing deficiency pertaining to the medical
equipment along with failed distribution policy leading to greater consequences
and on the other hand, negligent action of the hospital authorities leading to
leakage of oxygen and death of covid patients," the plea of a Mumbai based
NGO lawyer Vishal Tiwari to the Apex court stated. As per Apex court order dated
10 May 2021 the Ministry of Health and welfare has directed the formulation of a
central policy treating Oxygen as an essential commodity which will only be used
as a emergency resource and not for any other commercial purpose.
EG II panel has been setup to look after transportation, distribution and
allocation of oxygen tanks and other resources as an judicial effort towards
preventing misuse of Oxygen which is equivalent to a lifesaving drug
The Bolam Test
, especially in the context of tertiary care corporate
hospital has become obsolete and irrelevant. Judged by the 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.
A reconsideration, endorsed the approach of high degree of negligence being the
prerequisite for fastening criminal liability, and it was observed
that the order to hold the existence of criminal rashness or criminal
negligence, it shall have to be found out that the rashness was of such a
degree as to amount to taking a hazard knowing that the hazard was of such a
degree that injury was most likely imminent. The professional is judged to be
negligent if his applied methods were inappropriate or inadequate.
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 but this level of standard has become an
insufficient parameter. At present time the growing expectations and monetary
incentives provided by patients are matched with the provision of advanced
equipment and top class experts even amongst the field of practitioners.
The age of government hospitals providing services of MBBS doctors, charging
nominal fees has long gone. It is not possible for every professional to possess
the highest level of expertise or skills in the branch in which he
practices but when the respondent has gone to a corporate hospital that is
working solely for profit
and is paying a huge amount as fee, she is to
be provided super specialised tertiary care for her child in comparison to
ordinary care of run down the mill hospital.
On account of the failure the corporate is obliged to bear the responsibility
for inadequate treatment. At the same time the hired practitioner is also not
free of negligence until it is proved by the hospital that the super specialized
skills were practiced by the practitioner for which he received and accepted
remuneration. It follows that the practitioner has utilized his super speciality
skills which may not have resulted in desired relief. Hence he may not have been
negligent. This also absolves the corporate.
Sedley, L.J. opined that where a profession embraces a range of views as to
what is an acceptable standard of conduct, the competence of the defendant is to
be judged by the lowest standard that would be regarded as acceptable.
However, Bolam test was not applied when the actions of the medical specialists
were deficient as observed in August 2019 when the Medical Council of India held
5 medical practitioner punishable for causing death of a 10 month's old infant
even though the mother deposited the requested amount at the corporate clinics.
Their practitioners licenses were suspended and they were charged for offence of
culpable homicide under Section 304 of the Indian Penal Code (IPC), 1860 and the
case is under consideration by the Delhi High Court.
Evolution Of Bolam Test In Indian Law
In Jacob Mathew vs. State of Punjab and Ors.
 the court laid down Bolam test
as the most efficient measure of testing Medical Negligence saying that 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 decision of House of Lords in Maynard v. West Midlands Regional Health
by a Bench consisting of five Law Lords was relied upon in the
above case where it was settled that it is not enough to show that there is a
body of competent professional opinion which considers that decision of the
defendant professional was a wrong decision, if there also exists a body of
professional opinion, equally competent, which supports the decision as
reasonable in the circumstances. Hence it was considered insufficient that
subsequent events show that the operation need never have been performed, if at
the time the decision to operate was taken, it was reasonable, in the sense that
a responsible body of medical opinion would have accepted it as proper.
In England, Bolam test is now considered merely a 'rule of practice or of
evidence. It is not a rule of law. However as lad down in the larger Bench
of this Court in Supra Chief Justice Lahoti has accepted Bolam test as correctly
laying down the standards for judging cases of medical negligence, we follow the
same and refuse to depart from it.
Even though Bolam test was accepted by Apex Court for providing the standard
norms in cases of medical negligence, in the country of its origin, it is
questioned on various grounds. It has been found that the inherent danger in
Bolam test is that if the Courts deferred too readily to expert evidence medical
standards would obviously decline. It is criticized because the Bolam test opts
for the lowest common denominator.
It was noted that opinion was gaining ground in England that Bolam test should
be restricted to those cases where an adverse result follows a course of
treatment which has been intentional and has been shown to benefit other
patients previously. This should not be extended to certain types of medical
accident merely based on how common they are. Even though Bolam test 'has not
been uprooted' it has come under some criticism as has been noted in.
The learned authors have noted that there is an argument to the effect that
Bolam test is inconsistent with the right to life unless the domestic courts
construe that the requirement to take reasonable care is equivalent with the
requirement of making adequate provision for medical care.
Assessment Of Bolam Test In Other Countries
Bolam test was not a parameter which sufficiently acted to cover all aspects of
medical negligence. The same was recognized in by the ruling of the courts in
England and the Bolam test has been discarded.
A five Judge bench of the House
of Lords ruled that:
A defendant doctor escapes liability for negligent treatment or diagnosis just
because he leads evidence from a number of medical experts who are genuinely of
opinion that the defendant's treatment or diagnosis accorded with sound medical
Lord Browne-Wilkinson, speaking for the
bench, in his opinion stated that despite a body of professional opinion
approving the doctor's conduct, a doctor can be held liable for negligence, if
it is demonstrated that the professional opinion is not capable of withstanding
In recent times Bolam test has been further interpreted in different countries
courts and given a meaning which answers to the aspect of its inability to work
as a parameter to assess medical negligence. The standard of care exercised and
duty performed by medical practitioner reflects their skills and judgment which
helps in rectifying problems faced during examination, diagnosis and treatment
of the patient provided they possess the requisite knowledge.
The Australian Supreme Court laid down that the basic flaw involved in
approaching the standard of duty of care of a doctor as laid down in Bolam test.
The judgement states :
It has been accepted that the standard of care to be observed by a person with
some special skill or competence is that of the ordinary skilled person
exercising and professing to have that special skill.
But, that standard is not
determined solely or even primarily with reference to the practice followed or
supported by a responsible body of opinion in the relevant profession or trade.
Even in the sphere of diagnosis and treatment, the heartland of the skilled
medical practitioner, the Bolam principle has not always been applied.
and more importantly, particularly in the field of non-disclosure of risk and
the provision of advice and information, the Bolam principle has been discarded
and, instead, the courts have adopted the principle that, while evidence of
acceptable medical practice is a useful guide for the courts, it is for the
courts to adjudicate on what is the appropriate standard of care after giving
weight to "the paramount consideration that a person is entitled to make his own
decisions about his life".
A seven-judge bench of the U.K. Supreme Court in a more recent judgment
delivered in and traced the changes in the jurisprudence of medical negligence
in England and held that Patients are now widely regarded as persons holding
rights, rather than as the passive recipients of the care of the medical
profession. The Supreme Court noted that the courts have tacitly ceased to
apply the Bolam test in relation to the advice given by the doctor to their
An adult person of sound mind is entitled to decide which, if any, of the
available forms of treatment to 57 undergo, and her consent must be obtained
before treatment interfering with her bodily integrity is undertaken. The doctor
is therefore under a duty to take reasonable care to ensure that the patient is
aware of any material risks involved in any recommended treatment, and of any
reasonable alternative or variant treatments.
Apparently from the above rulings the effectiveness of Bolam test is inadequate
and has been discarded in some countries whereas been sent for reconsideration
along the same lines for improving the 60 years old test.
Bolam Test For Reconsideration
The judicial pronouncement by D.Y Chandrachud in a case of medical negligence
where the appellant was grieving and pleaded for damages for grievances suffered
by his wife during the course of treatment amounting to Rs.48 lakhs.The
Apex Court laid down that under no circumstances may a competent medical
practitioner take an unreasonable course of treatment which severely puts the
life of the patient at risk when there is an alternative with less risks and
better chances of success.
Such a specific case where unreasonableness in
professional conduct has been proven with regard to the circumstances of that
case, a professional cannot escape liability for medical evidence merely by
relying on a body of professional opinion. Along the same lines quantum of
compensation was awarded as a monetary sum of Rs. 6 Lakhs along with interest on
the sum awarded to be paid for period of time principle is due.
Justice Chandrachud also stated that the:
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.
However, the judgement is clearly elucidating the fact that the level of
standard of care expected of especially a corporate hospital was not met. The
petitioner's claim for damages were laid down as his payment in the corporate
house amounted to more than the damages awarded to him. Even though the Bolam test
talks about an ordinary practitioner but such practitioner is not hired by big
corporates and handed over huge tasks. A more deserving highly specialized
practitioner is invited by these corporate hospitals for handling the critical
patients as they require an experienced hand.
Justice A.K. Ganguly, addressed this Court, and observed that:
Even though Bolam test was accepted by this Court as providing the standard
norms in cases of medical negligence, in the country of its origin, it is
questioned on various grounds. It has been found that the inherent danger in
Bolam test is that if the courts refer too readily to expert evidence medical
standards would obviously decline. This should not be extended to certain types
of medical accidents merely on the basis of how.
The learned authors have noted
that there is an argument to the effect that Bolam test is inconsistent with the
right to life unless the domestic courts construe that the requirement to take
reasonable care is equivalent with the requirement of making adequate provision
for medical care.
In the context of such jurisprudential thinking in England, the Apex Court also
has to reconsider the parameters set down in Bolam test as a guide to decide
cases on medical negligence and especially in view of Consti. Art. 21 which
encompasses within itself guarantee of, a right to medical treatment and medical
care. It is now clearly evident that the Bolam test as a parameter according
to the Doctrine of Eclipse need to be overshadowed to the extent of its
contradictory remarks to Article 21 and the reliance upon the reason and basis
behind the relevance of the evidence presented requires to be taken in notice by
The recent times have been an eye-opening venture for the Apex Court as the
deaths caused due to inadequate facilities have exceeded far beyond the control
of the government. The Suo Moto writ petition in front of the Hon'ble Apex
Court where CJI S.A Bobde indicated that cases pending in High Courts might be
withdrawn to the SC as different HC dealing with issues create confusion. The
CJI said that at least 6 High Courts are considering cases related to pandemic
management. But it is creating confusion and diversion of resources", CJI Bobde
told Solicitor General Tushar Mehta.
The major decision of court during this pandemic in context of Medical
negligence was a crucial step to accommodate the growth and setup of Super
tertiary care hospital to minimalize the casualties caused by the SARS 19 virus
as well allocate the fund towards building of advanced and well-equipped nursing
homes and hospital beds with best medical facilities to provide life support to
critically endangered patient.
In the single bench Judgement of this court heard by Justice Indu Malhotra on
December 16, 2019 highlighting the idea of reconsidering Bolam test and
replacing it. It was held that the failure to inform the patient about the risk
of medical treatment undertaken, was a breach of duty.
The hospital was punished
for gross negligence and lack of standard of care as the necessary test of ROP
was unperformed on the deceased. The hospital stated that the standard of care
provided was justified as per the opinion of medical expert consulted and
briefed. But the Hon'ble court laid down that if the opinion is not logically
applicable and such opinion in the eyes of the court was not a careful or
The Apex Court considering the foreign legal judgements
on Bolam test held that if the arguments of the consortium of experts are not
logical or practical and are deficient then they are termed as unreasonable or
wanton decisions under medical negligence.
Reliance upon views of the experts, who cannot justify their own opinions, is
not practical as their application on patients are unreliable owing to their
special circumstances of the case. The huge hospitals are paid hefty sums to
provide practitioner of a better class who takes a method imbued with
practicality and considers its consequences and actual effects on the patient.
Blinding trust on a consortium of incompetent practitioners to provide a better
method is the flaw identified by the Apex court reflected in its judgement.
In the above case, Indu Malhotra J. also laid down the liability of hospital and
doctor to the patient owing to their breach of duty of care:
It is well established that a hospital is vicariously liable for the acts of
negligence committed by the doctors engaged or empaneled to provide medical
care. It is common experience that when a patient goes to a hospital, he/she
goes there on account of the reputation of the hospital, and with the hope that
due and proper care will be taken by the hospital authorities. If the hospital
fails to discharge their duties through their doctors, being employed on job
basis or employed on contract basis, it is the hospital which has to justify the
acts of commission or omission on behalf of their doctors.
Hence, the most important aspect is the Inadequacy of Bolam test reflected in
this judgement and answered by Apex Court was that the ROP test was done
accounted for under ordinary level of care. Hence the Bolam test did not fail
but was Inadequate to judge the requirement of the Screening test which is a
necessity, indifferent to the opinion of a forum of medical experts of that
field. Hence when the standards of such consortium is to be raised an emergence
of Corporate hospitals with advanced equipment and super tertiary care is
required as held in Montgomery v. Lanarkshire Health Board
as well as in the
Australian case law of Roger v. Whittaker
 where the Bolam test was regarded
as an non successful parameter in age of corporate hospitals.
- S.K Joshi, Law and the practice of medicine 60-62(Jaypee,1st ed.2010).
-  1 WLR:  2 All. E.R. 118 at 587.
- Oxygen leak kills 22 in Indian hospital as Covid crisis worsens, The
Guardian,(21 April, 2021 12:38 BST)
- Akshita Saxena,Plea in Supreme Court seeks Independent inquiry into the
tragic Nasik oxygen leak case, Which claimed 24 Lives (22 April, 2021 3:18 PM).
- Karan Singh Kohli v. Union of India, Suo Motu Writ Petition (Civil) No.3 of
- Passing order no. 40-3/2020- DM-I(A) issued along with DMA10(2) of 2005.
- Jacob Mathew v. State of Punjab,2005 6 SCC 1.
- Section 304-A of Indian Penal code of 1860.
- Subhash Chandra Tiwari v. West Bengal medical council ,2019 2 SCC 282.
- Id at 7
- Michael Hyde and Associates v. J.D. Williams & Co. Ltd [2001 PNLR 233
- Charlesworth & Percy on Negligence Para 8.03,(Sweet and maxwell), (14th edn).
- Order no. 2932 of 2019, Delhi medical council (3 September 2019).
- Id at 7.
-  1 All ER 635 (HL)
- Michael Powers QC, Nigel Harris and Anthony Barton's, Clinical
Negligence Para 1.60,(4th Edition, 2008
- Supra 7.
- Jackson & Powell on Professional Negligence (Sweet & Maxwell), (5th
- Bolitho v. City and Hackney health authorities, (1998) 1 AC 232.
- Roger v. Whittaker, (1992) 109 Aus. LR 625:  HCA
- Montgomery v. Lanarkshire Health Board  UKSC 11.
- Arun Kumar Manglik v. Chirayu Health and Medicare Pvt. Ltd., LNINDORD 2016
- Id at 15
- Vol.30, Halsbury's Laws of England Para 35(4th Edn. 1987).
- Id at 18.
- V. Kishan Rao v. Nikhil Specialty Hospital, (2010) 5 SCC 513.
- Supreme court takes Suo Moto cognizance of Covid cases , Livelaw,(22 April
2021 12:41 PM).
- Maharaja Agrasen Hospital v. Pooja Sharma & Ors, Civil Appeal No. 9461 Of
- Savita Garg v. Director, National Heart Institute, LNIND 2004 SC 1064.
- Cassidy v. Ministry of Health [(1951) 1 All ER 574(CA)].
- Supra 13.
- Supra 12.
Award Winning Article Is Written By: Mr.Kanishka Pandey
Authentication No: SP35733081051-06-0921