Supreme Court Guidelines On Medical Negligence

Introduction

Medical Professionals in the eyes of Law

Doctors are hailed as “real heroes”, “life saviours” and in the present circumstances, “corona warriors”, since doctors and medical staff have been working on the front lines of this pandemic, helping to save lives. They are in fact revered in the likeness of Gods; however, the law does not require medical practitioners to be ‘infallible’ or ‘perfect’ and regards them as professionals required to have necessary skills, expected to be prudent men/women of competence. In other words, they are not required to act with the highest expertise, but only with ordinary competence. The rationale behind this is that no professional can guarantee success in every situation, especially when success hinges upon variables outside man’s control. Thus, medical practitioners are simply required by law to have the required skills and knowledge, as well as to keep up with breakthroughs and innovations in their respective fields.

Medical Negligence in the times of Covid-19

During the Pandemic emergency, people have been losing confidence in doctors due to their negligent conduct in handling patients with basic and ordinary care, such as ensuring proper supply of pure drinking water, or timely supervision of doses of medicines.

In these crises, doctors’ ‘lack of care’ coupled with poor and insufficient medical equipment and infrastructure has cost many precious lives, causing more harm than the virus itself. There have been complaints of mismanagement, patients being denied proper treatment and medical aid, and, in certain circumstances, non-compliance with safety procedures, putting the lives of both healthcare personnel and patients in jeopardy.[1]

The overwhelming influence of commercialization and business-mindedness in the medical field may also be ascribed as a cause for the deterioration in medical self-regulatory norms and an increase in medical negligence cases. As such, it is necessary to restore the honour of the field of medicine and the public’s trust in it. This may be accomplished by understanding and abiding by the principles set out by S.C., which are discussed in this article.

Definition of Medical Negligence

The Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab[2] has defined Negligence as[3]:

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...”

Medical negligence, is thus defined as a medical professional’s conduct or omission (failure to act) that deviates from the established medical ‘standard of care’ or that of a reasonable person, resulting in harm or injury to another person (here, the patient). In other words, medical negligence is the ‘failure to follow a reasonable standard of care by a healthcare professional’.[4] The type of medical service offered, the practitioner’s expertise, training, and experience, and even the location where the treatment is taking place may all be taken into account when defining the acceptable level of care.[5]

Comprehensive Supreme Court Guidelines on Medical Negligence

In Kusum Sharma v. Batra Hospital & Medical Research Centre[6], a two-judge Supreme Court panel recognized several criteria to regulate medical negligence cases. When determining whether a medical professional is guilty of medical negligence, Justice Dalveer Bhandari noted that the following principles must be borne in mind:

1. Negligence is the breach of a duty exercised 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.

2. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

3. The medical professional is expected to bring 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.

4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of another professional doctor.

6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. 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.

8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.

9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.

10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

Essentials to Constitute Medical Negligence

There are three fundamental components of negligence: ‘duty,’ ‘breach,’ and ‘resulting harm.’ That is, to establish negligence, it must be shown that the person owed a duty of care to the plaintiff and that duty was breached, causing him/her to suffer damage as a consequence.[7]

Essentials of Medical Negligence in Tort Law

The Supreme Court has stated that a claim for medical negligence against a doctor in tort (for civil liability) can succeed when it is proved that either:

  1. he does not possess requisite skill which he professed to have possessed, or,
  2. he did not exercise such skill with reasonable competence.[8]

Bolam Test

The Bolam test was created in 1957 as a result of the judgement of the House of Lords in Bolam v Frierm Barnet Hospital Management Committee[9], which said that a doctor may be able to escape a lawsuit for negligence if he can show that other medical practitioners would have behaved in the same manner. The Bolam test, which argues that a doctor is not negligent if what he has done would be approved by a responsible body of medical opinion in the relevant speciality at the time, remains the principal test to assess ‘standard of care’.[10]

Essentials of Medical Negligence in Criminal Law

The provisions of the Indian Penal Code, 1860 are broad in nature and do not expressly deal with “medical negligence”. However, certain sections can be used to establish criminal culpability.

For example, section 304A of the IPC (which deals with the death of a person as a result of any rash or negligent act and carries a maximum sentence of two years in prison) is applied to both cases of accidents caused by rash and negligent motor vehicle driving and cases of medical negligence resulting in a patient’s death. Other general provisions of the IPC, such as sections 337 (causing harm) and 338 (causing grievous hurt), are also frequently invoked in medical negligence trials.[11]

To fasten medical negligence under criminal law, the following components must be present as emphasized by the Supreme Court in Jacob Mathew v. State of Punjab[12]:

  1. There must be gross, or very high degree of negligence, resulting in higher amount of damages incurred. Gross negligence can be described as ‘the severe disdain for or reckless disregard for the safety of others’. The term encompasses more than just carelessness or inaction. Thus, there must an incidence of deliberate act that has the potential to cause foreseeable harm.
  2. There must be an element of mens rea (guilty mind) or recklessness.
  3. The practitioner must have done or omitted to do something which in the given facts and circumstances no sensible and prudent medical professional would have done or omitted to do.

 In Emperor v. Omkar Rampratap[13], it was held that to impose liability under Section 304-A of I.P.C., the damage or loss suffered must also be a proximate and resultant consequence of the very negligent act of the doctor, without the intervention of another’s negligence.

Note: Medical Negligence can also be tried under the Indian Contract Act, 1872, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002, the Consumer Protection Act, 2019 and various other legislations and regulations.

Duties of Medical Practitioners

1. Duty of Care –

When a doctor attends to his patient, he owes him certain duties of care, which are stated as under:

(i) A duty of care in deciding whether to undertake this case

Doctors have a leeway in deciding whether to admit or refuse a case on the basis of their field of competence. They can also refuse to treat a patient if the treatment will cause more harm than good, if it is too risky and has not been approved by the patient or the patient’s family, if the treatment is illegal (e.g., stealing another person’s organ), if the patient’s wishes are unrealistic, or if the patient cannot bear the expenses.[14]

Thus, doctors have a right of refusing patient’s admission, or choosing a patient according to the Medical Council of India Rules (Rules of ethics, 2002). However, the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 provide that while a physician is not required to treat every individual who seeks his services under normal circumstances, it is obligatory upon him/her to treat a patient in an emergency, and no practitioner would deny treatment arbitrarily. Consequently, doctors cannot deny medical treatment in emergency cases involving accidents and women under labour.

(ii) A duty of care in deciding what treatment to give

Medical practitioners are expected to diagnose the illness or injury correctly and choose a suitable method of treatment. A doctor is thus, expected to use his expertise and knowledge reasonably to decide a suitable course of treatment. The treatment so chosen must be an accepted or established medical norm, rather than being obsolete or odd.

If a doctor uses a method of treatment that has been approved by a responsible group of medical professionals, he will not be held accountable. It implies that even if a more skilled medical expert advises a different course of treatment, the doctor will not be charged with “negligence” simply on those considerations.  In Hucks v. Cole[15], Lord Denning came to the conclusion that a medical practitioner cannot be held liable simply because things went off beam owing to mischance or misadventure, or because of a blunder in judgment in selecting one appropriate treatment technique over another. A medical practitioner, it was asserted, would only be held liable if his conduct fell below the standards of a reasonably competent practitioner in his field.[16]

However, it must be noted that a doctor having knowledge of a particular branch of medicine cannot employ an approach of treatment of some other branch on his patient. For instance, a registered homeopath cannot direct any allopathic or ayurvedic medicines. In Juggan khan v. The State of Madhya Pradesh[17], the Court observed, “In our opinion, 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.”

(iii) A duty of care in administrating that treatment properly

A medical professional has the duty to execute and administer the chosen course of treatment with care and caution as an average practicing doctor. Where they are required to exert a higher degree of care, they must take those considerations into account.

2. Duty to diagnose correctly

A medical professional has a duty to exercise his/her skills in diagnosing an illness or injury correctly. However, the courts are divided on whether “wrong diagnosis” should be treated as medical negligence or not. On one hand, Supreme Court in Vinod Jain Vs. Santokba Durlabhji Memorial Hospital and Ors.[18] has expressed that ‘wrong diagnosis’ does not constitute medical negligence; on the other hand, the Kerala H.C. in Dr. N. Ummar v. K.M. Hameed[19] has held ‘wrong diagnosis’ to be an act of negligence, and noted that:

“When a person who possesses sufficient qualifications in the field, is ready to give medical advice and treatment as an expert in that field, he impliedly undertakes that he possesses all sufficient skill and knowledge for such medical advice or treatment. Such a person has a duty to diagnose the illness and to decide the treatment to be given and the proper medicines to be administered.”

However, it is important to note the difference between mere ‘error of judgment’, which is excusable. While “wrong diagnosis” leading to wrong treatment is majorly actionable in medical negligence, simple ‘error of judgment’ (i.e., wrong or mistaken decision) is not considered in the same likeness.  It must also be underlined that the way an accident does not alone become a case of negligence (when a doctor acts reasonably), a simple ‘error of judgment’ cannot qualify as negligence.

To constitute negligence, such an “error of judgment” must be of a culpable nature that would not have been committed by a fairly competent professional purporting to have the quality and type of competence that he/she claims to possess while operating with ordinary care.[20]

3. Duty to attend to a Patient

A doctor has a legal obligation to see a patient admitted to the hospital, especially in its emergency room, and if the doctor fails to do so and the patient suffers or dies due to neglect, the doctor may be held responsible for damages.

Case Laws

Following are some case laws on various incidents of medical negligence:

1. Foreign matter left inside after surgery

The patient in A.H. Khodwa v. State of Maharashtra[21] had undergone sterilisation following childbirth. The doctor while doing the procedure had left a mop inside the patient’s abdomen. Peritonitis developed as a result, and the patient died a few days later. The doctor conducting the procedure was judged to be negligent.

2. Wrong part Removed

In Lakshmi Raj v. Malar Hospital Ltd.[22], the plaintiff, a married lady of 40 years, observed the growth of a painful lump in her breast. While treating the tumour, the defendant hospital removed her uterus without explanation. It was determined to be a matter of sheer negligence in service, for which the opposing party was ordered to pay the complainant Rs. 2,00,000 in compensation.

3. Doctor acting in callous manner

In Dr. Narayana K. Swamy v. A. Nazir Ahmad Khan[23], there was fatal blunder on the part of the doctor. The deceased, a 24-week-pregnant woman, was rushed to the hospital with a terrible bursting headache and vomiting. The symptoms showed the presence of a condition known as SAH (subarachnoid haemorrhage). Angiogram testing, according to the physicians, was necessary in order to discover the evidence relating to the occurrence of SAH.

Instead, the hospital performed a lumberpuncture test. Despite the fact that it was not needed, the test was repeated three times in a short period of time. Despite its reputation, the hospital was unable to source a radiologist for the angiography test for more than a week. Despite experiencing SAH and a blood clot in her brain, she was prescribed paracetamol pills. She was also denied the use of a stretcher, and instead had to be physically moved from one location to another. All of these data indicated that the hospital was negligent in its handling of fatal omissions. The plaintiff was awarded Rs. 1 lakh damages by the Karnataka High Court.

4. Death due to transfusion of blood of a wrong group

In P.G INST of Medical Education and Research V. Jaspal Singh and Others[24], the wife of the complainant received accidental burns while making tea on stove. She was brought to PGI for treatment. She was transfused the A+ blood group, which was her blood group. However, after 5 days, she was transfused the B+ blood group. Next day, again she was transfused a whole bottle of B+ blood group, due to which she suffered severe complications. Because of transfusion of mismatched blood, her haemoglobin level fell down to 5mg, urea level became high and also her kidney and liver became deranged. Ultimately, she died after a few days. It was held to be a clear case of negligence and the hospital was directed to pay a compensation of Rs. 2 lacs and a cost of Rs. 20,000.

Malicious Proceedings and Harassment of Doctors

When one party brings a baseless and dishonest lawsuit against another (here, a medical professional) with malicious intent, it is known as malicious prosecution. It must be ensured that doctors aren’t unnecessarily dragged into lawsuits just to extract as much compensation without any genuine injury or that of a trivial nature. Only such claims where the professional displays lack of reasonable care in exercising skills must be brought, that too, if the essentials of negligence can be verified and its consequence can be proximately traced to that negligence.

Doctors must be enabled to discharge their duties and carry out their duties without any kind of strange fear of legal action. In House of Lords in Maynard v. West Midlands Regional Health Authority[25], it was stated, “A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient“.

As a result, the Court made three important points that any forum considering the question of medical negligence in any jurisdiction should keep in mind. These are:[26]

  1. that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds;
  2. that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and
  3. 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’.

Conclusion

It is an indisputable fact that doctors are ‘life-savers’ and medical profession is a noble profession. However, gross errors and slack attitude of professionals have cost irreparable injuries and even death to patients who could’ve been saved with ordinary care. It is estimated that every year, over 5,000,000 Indians die as a result of medical negligence.[27] Such cases highlight the grave violation of the Right to health as an essential aspect of the Right to Life under Article 21.

Cases of medical negligence must be countered and doctors who are found genuinely guilty must be made liable so as to prevent future untoward incidents. Thus, it is high time that guidelines evolved by the Courts of Law and relevant enactments and regulations passed by Legislatures be enforced in hospitals, so that professionals can be made cognizant of their ‘duty of care’ while dealing with patients.

[1] Covid-19 and Medical Negligence: The need for comprehensive guidelines, available at: https://www.barandbench.com/columns/covid-19-and-medical-negligence  (last visited on July 14, 2021).

[2] A.I.R. 2005 S.C. 3180

[3] India: Medical Negligence during a Pandemic, available at: https://www.mondaq.com/india/professional-negligence/1077304/medical-negligence-during-a-pandemic (last visited on July 14, 2021).

[4] Medical Negligence, available at: https://www.alllaw.com/articles/nolo/medical-malpractice/negligence.html (last visited on July 14, 2021).

[6] (2010) 3 SCC 480

[7] Dr. R.K. Bangia, Law of Torts 228 (Allahabad Law Agency, Haryana, 25th edition, 2020).

[8] Jacob Mathew vs. State of Punjab, A.I.R. 2005 S.C. 3180

[9] 1957 1 WRL 582

[10] Test of Medical Negligence, available at: http://www.legalservicesindia.com/article/1685/Test-of-Medical-Negligence.html (last visited on July 16, 2021).

[11] Medical Negligence: Indian Legal Perspective, available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5109761/ (last visited on July 14, 2021).

[12] A.I.R. 2005 S.C. 3180

[13] 4 Bom. L.R. 679

[14] Can Doctor Refuse to treat a Patient?, available at: http://www.speakforhealthyindia.com/can-doctor-refuse-to-treat-a-patient/ (last visited on July 12, 2021).

[15]  (1993) 4 Med. L.R. 393

[16] Dr. R.K. Bangia, Law of Torts 228 (Allahabad Law Agency, Haryana, 25th edition, 2020).

[17] AIR 1963 MP 102

[18] MANU/SC/0267/2019

[19] A.I.R. 2014 (NOC) 49 (Ker.)

[20] Key Difference between Error of Judgment and Negligence in Medical Malpractice Law, available at: https://www.hshlawyers.com/blog/key-difference-between-error-of-judgment-and-negligence-in-medical-malpractice-law/  (last visited on July 16, 2021).

[21] 1996 A.C.J. 505 (S.C.).

[22] III (1998) CPJ 586 (Tamil Nadu S.C.D.R.C.)

[23] A.I.R. 2008 (NOC) 836 (Kar.)

[24] (2009) INSC 1127 [29 May 2009]

[25] [1985] 1 All ER 635

[26] Important Judgments on Medical Negligence in India, available at: https://www.vakilno1.com/legalviews/medical-negligence-case-laws.html (last visited on July 15, 2021).

[27] Nearly 50 Lakh Indians Die Due To Medical Negligence Every Year In Different Hospitals, available at: https://www.indiatimes.com/news/india/nearly-50-lakh-indians-die-due-to-medical-negligence-every-year-in-different-hospitals-355619.html  (last visited on July 15, 2021).

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Tazeen Ahmed

Tazeen Ahmed is a first-year law student at Jamia Millia Islamia, New Delhi, inquisitive about Constitutional Law, Family Law, Corporate Law, Human Rights Law, and Criminal Law. She is a proficient writer, skilled in conducting legal research and organizing her articulations on social-legal and political issues. She holds a sound academic record, having scored 93.80 % in AISSE and 95% in both Political Science and English Language in AISSCE. She has held prestigious positions in the Student Council and been adjudged the ‘Student of the Year 2016, Gurgaon’ by UnivQuest. She has formerly served as a legal intern at ubadvocate, where her performance was marked “outstanding” by the team and is an Editor at The Wall of Justice blog. She is also an avid reader, a poet, and a political enthusiast. Above all, she is a dedicated and dynamic soul, ever-prepared to undertake challenging roles in the legal battlefield, and treats constructive criticisms as stepping stones towards progress.

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