medical negligence

 A BLOG BY

GAURAV RAJ BHAGAT
ADVOCATE
HIGH COURT M.P

MEDICAL NEGLIGENCE: LEGAL CONNOTATIONS

 

INTRODUCTORY REMARK

Doctors in India are increasingly becoming victims of frivolous and vexatious complaints filed for Medical Negligence.  Medical Negligence, however, is a very broad term which covers Law of Tort and Civil Liabilities which needs to be built at length for the Doctors to understand their rights, duties and privileges.

 

In Maharaja Agrasen Hospital And Others v. Master Rishabh Sharma And Others, The complainants have filed Civil Appeal No. 9461 of 2019 (Diary No. 15393 of 2019) before the Hon’ ble Court for further enhancement of the compensation awarded by the National Commission.

This was done for claiming compensation of Rs 1,30,25,000 alleging medical negligence and deficiency in service on the part of Doctor (the Gynaecologist) for compensation for the permanent physical disability, mental agony, and social stigma, deprivation of normal human life, companionship, torture and harassment, etc.

 

It was further urged that the quantum of compensation awarded by the National Commission was grossly inadequate and insufficient. The National Commission failed to take into account variables such as the additional educational expenses in special schools, transportation costs, costs of purchasing, maintaining and upgrading visual aid/assistive devices, costs of permanent nursing/attendant care and miscellaneous medical expenses. It was further contended that the average rate of inflation taken by the National Commission i.e. a conservative rate of 1% p.a. for the next 59 years, was grossly undervalued.

The complainants sought enhancement of the compensation to the extent of Rs 9,87,84,000.

The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.

INGREDIENTS

The term Medical Negligence is explained as under:

Medical negligence comprises of the following constituents:

(1) A legal duty to exercise due care on the part of the medical professional;

(2) failure to inform the patient of the risks involved;

(3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional;

(4) if the risk had been disclosed, the patient would have avoided the injury;

(5) breach of the said duty would give rise to an actionable claim of negligence.

 

CAUSE OF ACTION FOR MEDICAL NEGLIGENCE

The cause of action for negligence arises only when damage occurs, since damage is a necessary ingredient of this tort. In a complaint of medical negligence, the burden is on the complainant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioner's breach of duty. In the absence of evidence to the contrary adduced by the opposite party, an inference of causation may be drawn even though positive or scientific proof is lacking.

THREE INTERWINED TERMS: MEDICAL NEGLIGENCE, SKILL & CARE, NEGLIGENCE.

MEDICAL NEGLIGENCE is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient

DEGREE OF SKILL AND CARE required is further explained as—… 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.”

Whereas NEGLIGENCE means: Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”

CONDITION IN WHICH DOCTOR CAN BE HELD GUILTY OF MEDICAL NEGLIGENCE

“… where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. 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.”

“… he [a Doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

 

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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued.

COMPONENTS OF NEGLIGENCE

The essential components of negligence are three:

(A)        Duty

(B)               Breach and

(C)               resulting damage.

Negligence in the context of the 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 Printed by licensee: Gaurav Raj Bhagat Page 24 of 34 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. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

TEST FOR MEDICAL NEGLIGENCE

The test for determining medical negligence as laid down in Bolam case (1957) 1 WLR 582 , (1957) 2 All ER 118 holds good in its applicability in India.”

“… where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. 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.”

BROAD PRINCIPLES

The broad principles under which medical negligence as a tort have to be evaluated, have been laid down in the celebrated case of Jacob Mathew v. State of Punjab 2005 6 SCC 1. In this judgment, it has been observed that the complexity of the human body, and the uncertainty involved in medical procedures is of such great magnitude that it is impossible for a doctor to guarantee a successful result and the only assurance that he “can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence.”