MEDICAL NEGLIGENCE AND LEGISLATIVE IMPACT

Profile of the Author: Tannu Ahlawat, a 2nd-year student pursuing LLB. from Law Center-1, Faculty of Law, University of Delhi.

INTRODUCTION

As Winfield explained, “Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff”. 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. [1] Medical negligence means failure to act per the standards of reasonably competent medical men at the time. [2] The plaintiff has to establish all the following essential ingredients for a successful medical negligence claim:

1) Existence of duty towards the patient: On the part of the defendant, there exists a legal duty to exercise due care towards the plaintiff. Such as,

(i) a duty of care in deciding whether to undertake the case.

(ii) a duty of care in determining what course of treatment to give.

(iii) a duty of care in the administration of treatment.

(iv) a duty to disclose the risks involved in the treatment.

2) Dereliction of duty: There was a breach of the said duty. The hospital or health care provider fails to provide the accepted standard of care.

3) Consequential damages: Due to the breach of the duty, the plaintiff suffered damages. It’s the occurrence of the damage which is the starting point of the cause of action. [3] The breach of duty is the proximate cause of the injury or damages. The damages may be physical as well as emotional.

The test for determining medical negligence as laid down in the Bolam case is applicable in India as well. In Bolam v. Friern Hospital Management Committee [4], the legal position was explained as “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. He/she does not need to possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of ordinary competent men exercising that particular art. A practitioner is not guilty of negligence if he acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art”. [5]

LEGISLATIVE IMPACT OF MEDICAL NEGLIGENCE

The jurisprudential notion of negligence varies in civil and criminal law. In Sayad Akbar v. State of Karnataka, [6] the Supreme Court pointed out the distinction between negligence in civil law and criminal law. It is the amount of damages incurred that is determinative of the extent of liability in tort; for negligence to amount to an offence the element of mens rea must be shown to exist and the degree of negligence should be much higher as the simple negligence may provide a ground for action in civil law but does not form the basis for prosecution.

CIVIL LIABILITY

Under civil law, a suit for medical negligence can be filed against the medical institute or practitioners for monetary compensation. In Indian Medical Association v. V.P. Shantha, [7] the Supreme Court held that the services rendered by the medical practitioner were covered by Section 2(1)(o) of the Consumer Protection Act, 1986.

In a few situations, the plaintiff can invoke the doctrine of res ipsa loquitur which means things speak for itself. The doctrine means that where the plaintiff’s evidence of injury creates a probability so strong that a lay juror can form a reasonable belief, he may be allowed a waiver in the requirement of the expert testimony. This doctrine was applied by the National Consumer Disputes Redressal Commission in the case of Dr. Janak Kantimathi Nathan v. Murlidhar Eknath Masane [8]. The principle of res ipsa loquitor comes into operation only when there is enough evidence that the accident couldn’t have happened in the first place without negligence on the part of the doctor.

ASSESSING CRIMINAL CULPABILITY UNDER SECTION 304-A

Criminal medical negligence is governed by Section 304-A IPC, it is settled that in criminal law negligence to be held, must be of such high degree as to be “gross”. To prosecute a medical professional for negligence under criminal law it is necessary to prove that the accused did 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 cause of death was direct or proximate.

The cumulative effect of negligence: It is to be noted that the doctrine of cumulative effect is not available in criminal law. The complexities involved in the instant case as also the differing nature of negligence exercised by various doctors, make it very difficult to distinguish the individual’s extent of negligence with respect to each of the respondent. Negligence in the context of the medical profession inevitably calls for more attentiveness. To infer rashness or negligence on the part of the professional, in particular a doctor, additional considerations apply. The Supreme Court in the Jacob Mathew v. State of Punjab [9] laid down the following:

1. Mere deviation from normal professional practice is not necessarily evidence of negligence.
2. A mere accident is not evidence of negligence.
3. An error of judgment on the part of a professional is not negligence per se.

Simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitor. [10]

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FAQ

Q1. What is medical negligence?

A1. Negligence is the failure to exercise due care and attention. It occurs when a doctor fails to perform to the standards of his or her profession.

References

[1] Ratanlal & Dhirajlal, The Law of Torts, Pg. 496 (28th Edition).

[2] Bolam v. Friern Hospital Management Committee, (1957) 2 ALL ER 118.

[3] Cartlege v. E Jopling & Sons Ltd, (1963) 1 All ER 341: (1963) 2 WLR 210: 1963 AC 758.

[4] Supra Note 2.

[5] Ibid.

[6] Sayad Akbar v. State of Karnataka, (1980) 1 SCC 3.

[7] Indian Medical Association v. V.P. Shantha & Ors., (1996) AIR 550.

[8] Dr. Janak Kantimathi Nathan v. Murlidhar Eknath Masane, 2002 (2) CPR 138.

[9] Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.

[10] Ibid.