A professional in any field is deemed to possess essential knowledge and skill
needed for the purpose and owes a duty of care in the conduct of his duties
towards their client. Medical negligence is understood as the breach of such
standard of care by a medical practitioner which resulted in subsequent injuries
to the patient, which otherwise would not have taken.
This standard of care is a
degree higher than that the ordinary care because a medical practitioner is
expected to be proficient as far as medical treatment is concerned and is thus recontextualized as that of the standard of comparable professional
practice.The test for determining Medical Negligence was put forth in Bolam
v. Friern Hospital Management Committee
, widely known as the Bolam Test.
Elements Of Medical Negligence
Duty of care - An early case of Donoghue v Stevenson
 established the
concept of duty of care' in 1932, where it was held that there happens to be a
general obligation to take certain amount of reasonable care to prevent any kind
of foreseeable harm to a 'neighbour.
' In this case, the plaintiff bought a bottle
of ginger beer manufactured by the defendants and consumed a portion of the
bottle's contents until she found the dead remnants of a snail towards the end
of the bottle.
After consumption, the consequence was that the lady suffered
from severe gastroenteritis, and a claim for compensation was filed against the
manufacturer. It was determined that the manufacturers failed to exercise
reasonable care expected in the production process they owed to a neighbour.
'neighbour' here is defined as 'someone who may fairly be viewed as intimately
and immediately impacted by an act.' This very duty of care is owed to those
whom the manufacturers intend to consume their goods. The existence of this duty
of care is contingent upon reasonable foresight, directness, and a variety of
other complicated criteria. In medical negligence, the medical practitioner need
not possess the utmost expert proficiency at the profession, it's adequate if he
practices the ordinary skill of an ordinary man who is competent in performing
that given art.
Breach of duty-This is formed in cases when a doctor's practice has failed to
satisfy a suitable level of prudence. When it comes to tort claims, the standard
of the 'reasonable man,' often known as an ordinary person put in the same
circumstances, is adopted in most instances. However, in the case of a suspected
violation of professional responsibility, the criterion of similar professional
practice is construed as the standard of comparable professional practice.
breach of duty takes place when a duty of care was established and standards
were set and the doctor somehow violates that vey duty. The most important thing
to be observed is that there was expectation of a certain standard and then
actions of the doctor are identified and then breach of duty is established.
Harm caused due to the breach of duty–For establishing a cause it must be proved
that the damage would not have happened if the doctor had not taken an action or
failed to take an action. In this regard, the plaintiff must demonstrate a
direct relationship between the alleged misconduct and the harm thus suffered.
Therefore, to establish this element the patient needs to first successfully
prove that that the breach contributed significantly to the harm caused or the
damage was only a mere negligence rather than from another source.
of 'res ipsa loquitur' (which means "the thing speaks for itself") is applied
when there is no explanation which is reasonable enough for a phenomenon to
establish this element. Such a circumstance is often attracted by cases where
harm is caused due to medical practitioner's failure to exercise certain amount
of duty or omission of such nature while discharging their duties with respect
to their patients. In such cases, causation is presumed to have been proved
unless the defendant can demonstrate that there is another logical explanation
for the injury.
The key issue in medical litigation is whether a doctor has met the required
standard of care as per the law or not. This anticipated standard expected is of
'reasonable care.' All the facts surrounding a specific case must be considered,
and the inherent variability in medical practise must be balanced against the
patient's interests. The court utilises the Bolam test to determine this
In the aforementioned case, John Hector Bolam (the plaintiff) was diagnosed with
clinical depression and thus was consulted to come in for Electro-Convulsive
Therapy (ECT). He beforehand was not cautioned about the possibility of fracture
prior to the surgery, nor was he physically restrained or given anaesthesia.
During the surgery, his pelvis was fractured. Therefore he alleged that the
doctor who was treating him was negligent in not alerting him of the possible
danger or providing him with muscle relaxation.
However, it was determined that
the alleged negligence could not be properly established because evidence
suggested that at that very time, administering muscle relaxation was not a
standard practice due to differing opinions on the relative merits of muscle
relaxation and the increased risks associated with using a relaxant. Thus, the
defendant hospital was no made liable.
This particular thing follows that if
there's a medical practice and it is backed by a responsible group of medical
practitioners, then the same test stands satisfied and that that practitioner
has met with the professional standard of care. This case brought to light
the importance of medical experts' evidence in determining negligence. The
Judge, Mc Nair, L.J., categorically emphasised that it was not the discretion of
the judge to determine the medical professionals to decide the medical dispute
and that it was upon the medical professionals to decide if negligent treatment
had taken place.
The Modern Day Use Of Bolam Test
The Bolam Test is still in use today, and medical witnesses must testify as to
whether or not they believe negligent treatment has taken place based on their
professional knowledge and expertise. The same is reflected in India. In the
case of Suresh Gupta vs. NCT of Delhi
 the doctor was held liable according to
S.304A of IPC using Bolam Test and reiterated this idea that the test of
medical negligence holds good in India.
The court in its judgement held that one
of the prerequisite to be held liable under 304A of IPC is that there should be
gross negligence but, in this case, there was a mere omission of a duty and
subsequently the care which cannot be a ground to hold the appellant criminally
liable, instead there can be civil liability. Though there was carelessness on
the part of the appellant but it cannot be described as gross. Here degree of
negligence played a vital role and subsequently appellant-doctor was absolved of
So, the court relied on standards of negligence here. In another
case of Jacob Mathew vs. State of Punjab
, the Supreme Court of India had made
use of the Bolam Test and ruled that the Bolam rule may be used to evaluate
whether a medical practitioner was negligent and declared that the rule would
apply in India.
Here the appellant-doctor was charged u/s. 304A of IPC but
the court laid that for a private person to be liable under the same there has
to be prima facie evidence of omission of a duty and subsequent negligence. It
shall only be after successfully proving the same that the liability and
subsequent arrest should be determined. Here there was nothing as such that
could be proved thus the doctor was absolved of his liability under 304A of IPC
on the basis of Bolam Test.
Why Bolam Test Is An Inadequate Parameter
The Bolam test, ever since its inception, has invited a deluge of criticisms
about its applicability and probable misuse. One such fine argument rests in the
fact that the test fails to draw a line between 'what is done' and 'what ought
to be done'. The negligence in the conduct of an act shall always be gauged
against what ought to be taken care of.
An act which is not negligent as per
the views of the normal standard of care might be negligent if that standard
falls below the requisite standard of professional care. The Bolam test
emphasises on 'what is done' to determine negligence and set the standards of
care. This permits the medical practitioners to put forth for themselves a
standard of care which is legal and is garnered by a 'responsible body of
This attracted another such criticism that it is
unethical that the opinion of a group of medical professionals determine the
negligence of a medical practitioner. This could provide the practitioners an
opportunity to maintain their own interests rather than that of the patient and
in turn absolves them of any liability. It can also be viewed in juxtaposition
with the rights of the patient.
The consent of the patient plays a crucial role
in the medical profession, the test eludes this aspect and works upon the aspect
of the 'best interest' of the patient. In the same case it should be the court
that determines what shall fall within the 'best interests' of the patient and
not a peer group of medical practitioners. Critics have often emphasized upon
the need for establishment of proper set of standards by courts instead of
resting the same on a peer of authoritative professionals.
negligence cases rising day by day, the Bolam Test cannot be considerate as it
is not reasonable enough to determine medical negligence and subsequently the
respondent is denied quick relief. Logical basis and subsequent analysis too
cannot be determined. This Bolam test seems as if it has exceeded the borders of
diagnosis and the subsequent treatment, as well as the bounds of medicine, thus
widening the doctor's position to that of a moral arbiter.
In a recent case of Dr Harish Kumar Khurana vs Joginder Singh & Others
plaintiff's wife was detected of having a stone in her right kidney in the
appellant's hospital. She was recommended for a surgery but she had to once
again visit the hospital to find that both her kidneys had a stone but her right
kidney was in an adverse condition. Surgery was performed by the appellant after
obtaining consent and it was informed by him that both the kidneys couldn't be
operated at the same time due to the adversity.
So, the left kidney was operated
first and it was successful. After few days right kidney was operated and when
she was administered injections, her health deteriorated and she suffered a
cardiac arrest and after few days she died. The plaintiff now filed the case of
medical negligence against the appellant. After many hearings, it was decided
that second surgery was not an emergency to be conducted few days after first
surgery and appellant-doctor breached the duty of care and standards therein
which existed between appellant and respondent and was liable for medical
negligence thus failing the Bolam test. The NCDRC also referred to the Doctrine
of Res Ipsa Loquitor to infer that the appellant was negligent.
The Bolam test encapsulates the idea that a medical practitioner is not liable
for medical negligence if he/she has acted according to the opinion of a
responsible group of professionals. This notion excludes any sort of judicial
intervention to the extent of determining negligence. Over the due course of
time, the test has granted ample powers in the hands of medical practitioners
and snatched away the adjudicating powers of the courts in medical professions.
This norm shall be alleviated and a new method of approach shall be adopted
where courts play a crucial role and the verdict is given as per the prevailing
notions of society. It is high time that the general practice should shift away
from the 'accepted practice' of Bolam test into a more logical test of 'expected
practice', which in current times is known as the Bolitho test. But the job
does not end here.
Judgment should always be delivered on a logical and a
rational basis, the judiciary should always thrive to work in the direction that
is in accordance with the best interest of the aggrieved. The existence of such
an irrational test provides evidence of the ineffective machinery and it should
be a wake-up call for the responsible body.
Written By: Satya Narayan Pradhan and Sruti Patra.
- Continuing Education in Anaesthesia Critical Care & Pain, "Duty of care and
medical negligence", Volume 11, Issue 4, August 2011.
- Bolam v Friern Hospital Management Committee, (1957) 1 WLR 582.
- Donoghue v Stevenson, (1932) AC 562.
- Bolam v Friern Hospital Management Committee, (1957) 1 WLR 582.
- Samanta A, Samanta J, Legal standard of care: A shift from the traditional
Bolam test, (2003) 3 Clin Med (Lond), 443
- Dr Suresh Gupta v Govt of NCT of Delhi, AIR (2004) SC 4091.
- 304A of IPC states Causing death by negligence -Whoever causes the death of
any person by doing any rash or negligent act not amounting to culpable
homicide, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.
- Jacob Mathew v State Of Punjab, (2005) 6 SCC 1.
- n 7.
- Montrose A, Is negligence an ethical or sociological concept? (1958) 21
Med LR, 259.
- Teff H, The standard of care in medical negligence – moving on from Bolam? (1998) 18 OJLS, 473.
- Harish Kumar Khurana v Joginder Singh & Others, (2021) SCC OnLine SC 673.
- Res Ipsa Loquitor states the thing speaks for itself.
- Bolitho v. City and Hackney Health Authority, (1998)AC 232.
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