Nature of Medical NegligenceIn the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes shall be exercised with reasonable degree of care and caution. On the same analogy, this assures the patients that a doctor possesses the requisite skill in the medical 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. Judged by this standard, a professional including medical 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 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 necessary for every professional to possess the highest level of expertise in that branch which he practices. Where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the professional is to be judged by the lowest standard that would be regarded as acceptable. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. 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.
Thus, a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more.
To establish liability on that basis it must be shown
(1) that there is a usual and normal practice;
(2) that the defendant has not adopted it; and
(3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.
A medical practitioner cannot 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. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are: (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation the person holding the 'smoking gun'. Thus, to establish a medical negligence, the abovementioned position must be kept in mind
Criminal Law: Where Negligence Amounts To Crime
The criminal law has invariably placed the medical professionals on a pedestal different from ordinary mortals. The Indian Penal Code, 1860 sets out a few vocal examples. Sec. 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for person's benefit. Sec. 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to a person and that person has not consented to suffer such harm. Sec. 93 saves from criminality certain communications made in good faith. The rationale behind these provisions is that no man can so conduct himself as to make it absolutely certain that he shall not be so unfortunate as to cause the death of a fellow-creature. The utmost that he can do is to abstain from every thing which is at all likely to cause death.
No fear of punishment can make him do more than this; and therefore, to punish a man who has done this can add nothing to the security of human life. Thus, when a person engaged in the commission of an offence within the meaning of IPC causes death by rashness or negligence, but without either intending to cause death, or thinking it likely that he shall cause death, he should be liable for the punishment of the offence which he was engaged in committing, superadded to the ordinary punishment of involuntary culpable homicide. The involuntary causing of death, without either rashness or negligence, should under no circumstances be punished as murder. The following statement of law on criminal negligence by reference to surgeons, doctors etc. and unskillful treatment contained in Roscoe's Law of Evidence is classic in this regard:
"Where a person, acting as a medical man, whether licensed or unlicensed, is so negligent in his treatment of a patient that death results, it is manslaughter if the negligence was so great as to amount to a crime, and whether or not there was such a degree of negligence is a question in each case for the jury. In explaining to juries the test which they should apply to determine whether the negligence in the particular case amounted or did not amount to a crime, judges have used many epithets, such as 'culpable,' 'criminal', 'gross', 'wicked', 'clear', 'complete.' But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment."
Deficiency In Services Amounting To Negligence In Consumer Protection ActPractice of medicine is as old as existence of human race. Originally, the priest functioned as preacher, teacher, judge as well as healer. He was the first physician and his relationship with his patients was unique and unquestioned. With the passage of time not only has practice of medicine graduated to become independent and noble profession, but his relationship has slowly shifted from 'Next to God' to 'Friend, Philosopher and Guide', to 'respected professional' and, today, to service provider. With increased consumer awareness, rising expectation, western trend of medical liability litigation, Consumer Protection Act, and judicial activism, increasing number of complaints are being filed by dissatisfied patients resulting in growing distrust between patients and doctors and increased cost of medical treatment.
Over the last fifteen years there has been increased speculation on whether "Medical Services" are expressly or categorically included in the definition of term "services" under Section 2(1)(o) of the Consumer Protection Act.
In Indian Medical Association v. V.P. Shantha and Ors the principal issue which arose for decision before the Supreme Court was whether a medical practitioner renders 'service' and can be proceeded against for 'deficiency in service' before a forum under the Consumer Protection Act, 1986. The Court dealt with how a 'profession' differs from an 'occupation' especially in the context of performance of duties and hence the occurrence of negligence. The Court noticed that medical professionals do not enjoy any immunity from being sued in contract or tort (i.e. in civil jurisdiction) on the ground of negligence.
However, in the observation made in the context of determining professional liability as distinguished from occupational liability, the Court has referred to authorities, in particular, Jackson and Powell and have so stated the principles, partly quoted from the authorities :-
"In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services.
The Court held that even though services rendered by medical practitioners are of a personal nature they cannot be treated as contracts of personal service (which are excluded from the Consumer Protection Act). They are contracts for service, under which a doctor too can be sued in Consumer Protection Courts.
A 'contract for service' implies a contract whereby one party undertakes to render services (such as professional or technical services) to another, in which the service provider is not subjected to a detailed direction and control. The provider exercises professional or technical skill and uses his or her own knowledge and discretion. A 'contract of service' implies a relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. The 'contract of service' is beyond the ambit of the Consumer Protection Act, 1986, under Section 2(1)(o) of the Act. The Consumer Protection Act will not come to the rescue of patients if the service is rendered free of charge, or if they have paid only a nominal registration fee. However, if patients' charges are waived because of their incapacity to pay, they are considered to be consumers and can sue under the Consumer Protection Act.
Torts Law: Recourse To Claim Compensation
Under civil laws, at a point where the Consumer Protection Act ends, the law of torts takes over and protects the interests of patients. This applies even if medical professionals provide free services. In cases where the services offered by the doctor or hospital do not fall in the ambit of 'service' as defined in the Consumer Protection Act, patients can take recourse to the law relating to negligence under the law of torts and successfully claim compensation. The onus is on the patient to prove that the doctor was negligent and that the injury was a consequence of the doctor's negligence. Such cases of negligence may include transfusion of blood of incorrect blood groups, leaving a mop in the patient's abdomen after operating, unsuccessful sterilisation resulting in the birth of a child, removal of organs without taking consent, operating on a patient without giving anaesthesia, administering wrong medicine resulting in injury, etc
Review of Judicial Pronouncements In India
A review of Indian decisions on medical negligence would be relevant in this regard. In John Oni Akerele v. The King a duly qualified medical practitioner gave to his patient the injection of Sobita which consisted of sodium bismuth tartrate as given in the British Pharmacopoeia. However, what was administered was an overdose of Sobita. The patient died. The doctor was accused of manslaughter, reckless and negligent act. He was convicted. The matter reached in appeal before the House of Lords. Their Lordships quashed the conviction and summed up the position as under:-
# That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State;
#That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime.
#It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion. The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck
The question of degree has always been considered as relevant to a distinction between negligence in civil law and negligence in criminal law. In Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra while dealing with Section 304A of IPC, the following statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap, was cited with approval:-
"To impose criminal liability under Section 304-A, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non."
The above said view of the law has been generally followed by High Courts in India. The same view has been reiterated in Kishan Chand and Anr. v. The State of Haryana.
In Juggankhan v. The State of Madhya Pradesh, the accused, a registered Homoeopath, administered 24 drops of stramonium and a leaf of dhatura to the patient suffering from guinea worm. The accused had not studied the effect of such substances being administered to a human being. The poisonous contents of the leaf of dhatura were not satisfactorily established by the prosecution. The Supreme Court exonerated the accused of the charge under Section 302 IPC. However, on a finding that stramonium and dhatura leaves are poisonous and in no system of medicine, except perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea worm, the act of the accused who prescribed poisonous material without studying their probable effect was held to be a rash and negligent act. It would be seen that the profession of a Homoeopath which the accused claimed to profess did not permit use of the substance administered to the patient.
The accused had no knowledge of the effect of such substance being administered and yet he did so. In this background, the inference of the accused being guilty of rash and negligent act was drawn against him. Thus the principle which emerges is that a doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence.
Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr was a case under Fatal Accidents Act, 1855. The duties which a doctor owes to his patients came up for consideration. The Supreme Court held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient.
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. The doctor no doubt has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In this case, the death of patient was caused due to shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anesthetic to the patient. The criminal negligence or liability under criminal law was not an issue before the Court as it did not arise and hence was not considered.
In Poonam Verma v. Ashwin Patel and Ors a doctor registered as medical practitioner and entitled to practice in Homoeopathy only, prescribed an allopathic medicine to the patient. The patient died. The doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband on the ground that the doctor who was entitled to practice in homoeopathy only, was under a statutory duty not to enter the field of any other system of medicine and since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct amounted to negligence per se actionable in civil law.
In Achutrao Haribhau Khodwa and Ors. v State of Maharashtra and Ors the Supreme Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It was a case where a mop was left inside the lady patient's abdomen during an operation. Peritonitis developed which led to a second surgery being performed on her, but she could not survive. Liability for negligence was fastened on the surgeon because no valid explanation was forthcoming for the mop having been left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held applicable 'in a case like this'.
In Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr. the legal decision is almost firmly established that where a patient dies due to negligent medical treatment of the doctor, the doctor can be made liable in civil law for paying compensation and damages in tort and the same time, if the degree of negligence so gross and his act was reckless as to endanger the life of the patient, he would also be made criminally liable to offence under Section 304-A IPC. "Thus a doctor can not be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State".
In the case of Jacob Mathew v. State of Punjab three Judge Bench of Supreme Court by order quashed prosecution of a medical professional under Section 304-A/34 IPC and disposed of all the interlocutory applications that doctors should not be held criminally responsible unless there is a prima-facie evidence before the Court in the form of a credible opinion from another competent doctor, preferably a Government doctor in the same field of medicine supporting the charges of rash and negligent act.
The result of these decisions can be summed up as:
(1) Negligence is the breach of a duty caused by 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. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a 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. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.
(3) A professional may be held liable for negligence on one of the 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 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.
(4) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(5) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.
(6) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(7) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law especially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
Conclusions and Suggestions
An indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to the society. There must be a link between fault, blame and justice requirements. The learned authors of Errors, Medicine and the Law highlight the link between moral fault, blame and justice in reference to medical profession and negligence. These are of significance and relevant to the issues before us. These are:
(i) The social efficacy of blame and related sanctions in particular cases of deliberate wrongdoings may be a matter of dispute, but their necessity in principle from a moral point of view, has been accepted. Distasteful as punishment may be, the social, and possibly moral, need to punish people for wrongdoing, occasionally in a severe fashion, cannot be escaped. If we are constantly concerned about whether our actions will be the subject of complaint, and that such complaint is likely to lead to legal action or disciplinary proceedings, a relationship of suspicious formality between persons is inevitable.
(ii) Culpability may attach to the consequence of an error in circumstances where substandard antecedent conduct has been deliberate, and has contributed to the generation of the error or to its outcome. In case of errors, the only failure is a failure defined in terms of the normative standard of what should have been done. There is a tendency to confuse the reasonable person with the error-free person. While nobody can avoid errors on the basis of simply choosing not to make them, people can choose not to commit violations. A violation is culpable.
(iii) A correct balance of the interests of the plaintiff and the interests of the defendant should ensure that tort liability is restricted to those cases where there is a real failure to behave as a reasonably competent practitioner would have behaved. An inappropriate raising of the standard of care threatens this balance. While expectations from the professionals must be realistic and the expected standards attainable, this implies recognition of the nature of ordinary human error and human limitations in the performance of complex tasks.
(iv) Conviction for any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrongdoing are morally blameworthy, but any conduct falling short of that should not be the subject of criminal liability. Common-law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high a standard traditionally described as gross negligence. In fact, negligence at that level is likely to be indistinguishable from recklessness.
(v) Blame is a powerful weapon. Its inappropriate use distorts tolerant and constructive relations between people. Distinguishing between (a) accidents which are life's misfortune for which nobody is morally responsible, (b) wrongs amounting to culpable conduct and constituting grounds for compensation, and (c) wrongs calling for punishment on account of being gross or of a very high degree requires and calls for careful, morally sensitive and scientifically informed analysis; else there would be injustice to the larger interest of the society.
This may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. There is a need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Such malicious proceedings have to be guarded against and genuine complaints must be ensued with extreme punitive stings. Thus, a complainant has to produce prima facie evidence before the Court to support the charge of rashness or negligence on the part of the accused doctor.
1. Dr. Mukesh Yadav, "Criminal Negligence by Doctors-A Scenario of Aggressive Patients, Confused Doctors and Divided Judiciary!", IIJFMT 2(4) 2004.
2. N.Satyanarayana, G. Vijaya Kumar, "Consumer Protection Act and the Medical Profession", IndMedica, 2006.
3. Talha Abdul Rahman, "Medical negligence and doctors' liability", Indian Journal of Medical Ethics, April-June, 2005.
1. O. P. Verma, "Doctors heave a sigh of relief", Deccan Herald, Sunday, August 15, 2004.
2. Rakesh Shukla, "The criminal liability of doctors", InfoChange News and Features, November 2004.
3. Sanjay Kumar, "Indian courts rule against criminal liability in cases of error", BMJ 2004; 329:368 (14 August).
1. Bag, R. K., "Law of Medical Negligence and Compensation", Eastern Law House Pvt. Ltd., New Delhi, 2001.
2. Rao, Dr. S V Joga, Current Issues in Criminal Justice and Medical Law - A Critical Focus, Eastern Law House Pvt. Ltd., 1999.
1. Achutrao Haribhao Khodwa v. State of Maharashtra (1996) 2 SCC 634
2. B.Shekhar Hegde v. Dr.S.Bhattacharya and Another II 1992 CPJ 449
3. Dr. G.C. Batalia v. The Consumer Dispute Redressal Forum and another II (1994) CPJ 523
4. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr (1969) 1 SCR 206
5. Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr (2004) 6 Scale 432
6. Emperor v. Omkar Rampratap 4 Bom LR 679
7. Indian Medical Association v. V P Shantha AIR 1996 SC 550: (1995) 6 SCC 651
8. Jacob Mathew v. State of Punjab AIR 2005 SC 3180
9. John Oni Akerele v. The King AIR 1943 PC 72
10. Juggankhan v. The State of Madhya Pradesh (1965) 1 SCR 14
11. Kalra Satyanarayana v. Lakshmi Nursing Home 1 (2003) CPJ 262
12. Kishan Chand and Anr. v. The State of Haryana (1970) 3 SCC 904
13. Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra (1965) 2 SCR 622
14. Lakshmi Rajan v. Malar Hospital III (1998) CPJ 586
15. M/s. Cosmopolitan Hospital and another v. Vasantha P. Nair I (1992) CCPJ 302
16. P N Rao v. G Jayaprakasu AIR 1950 AP 201
17. Philips India Ltd. v. Kunju Pannu AIR 1975 Bom. 306
18. Poonam Verma v. Ashwin Patel and Ors (1996) 4 SCC 332
19. Spring Meadows Hospital v. Harjol Ahluwalia AIR 1998 SC 1801
20. State of Haryana v. Smt Santara AIR 2000 SC 1888
21. State of Punjab v. Mahinder Singh Chawla AIR 1997 SC 1225
Foreign Judgments:1. Bolam v. Friern Hospital Management Committee,  1 W.L.R. 582
2. Eckersley v. Binnie  18 Con.L.R. 1
3. Hucks v. Cole  118 New LJ 469
4. Michael Hyde and Associates v. J.D. Williams and Co. Ltd,  P.N.L.R. 233
5. R.v. Bateman (1925) L.J. (K.B.) 792
6. Roe and Wooley v. The Ministry of Health and others ( 1954) 2 All E.R. 131
MTP Act- The Flag Bearer of Unconstitutionality: The right to life which is the most fundamental of all is also the most difficult to define. Certainly it cannot be confined to a guarantee against the taking away of life; it must have a wider application. By the term something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed
Brain Mapping Test - Narco Analysis Test in India
What is Brain Mapping Test
The Brain Mapping Test is also known as P-300 test. In this test of Brain Mapping the suspect is first interviewed and interrogated find out whether he is concealing any information. The activation of brain for the associated memory is carried out by presenting list of words to the subjects.
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