On a philosophical standpoint we acknowledge error as an essence of life. Through every failure we familiarise something new, but this point of view is not appropriate when error is committed from the part of a professional especially the one who works in the medical domain.Any negligence or error from the part of the doctor that causes some damage to a patient will probably result in the definite initiation of a Medical Negligence controversy.
Negligence is well defined by prominent jurists and courts on many occasions. Some school of thoughts accepted it as a "state of mind" but some believes it as a "kind of conduct". Clark and Lindsell says, "Negligence is the omission to take such care as under the circumstances it is the legal duty of a person to take. It is in no sense a positive idea and has nothing to do with a state of mind". The Negligence is nothing short of a negative conception formulated as a wrong which opens for the expression of damage to the aggrieved. But when it lands in the field of medical practice the normal scale for considering negligence is not worthy to reach in to a legitimate conclusion.
It can be said that misconception about the role of doctors gives rise to many disputes alleging medical negligence. Impulsive emotional reactions often result in attributing professional negligence as cause of tragic medical results.
Pertinent in this context is the observation made by the Apex Court in Jacob Mathew's case [(2005) 6 SCC 1] :
"A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by committing to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. 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.
If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason- whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life -saving dose of medicine. Discretion being the better part of the valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society."
The SC has taken a balanced and considerate view of the matter which neither condones the cases of callous negligence such as a surgeon forgetting his surgical gauze inside the body of the patient, or justifies the carelessness of a medical practitioner within the ordinary skills.
Doctors' duties to the patient
A person who holds himself out as ready to give medical advice or treatment implicitly undertakes that he is possessed of skill and knowledge for the purpose. Such a person owes the patient 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"(Halsbury's Law of England 4th Edn, Vol.26 and this was later recapitulated in Kusum Sharma & Ors v. Batra Hospital & Medical Research Centre & Ors ,(2010) 3 SCC 480.)
The notion of negligence in normal parlance can be equalised with carelessness, breach of care or caution , dereliction of duty etc. Negligence is the breach of a 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. (Law of Torts, Ratanlal & Dhirajlal edited by Justice G.P.Singh) . The negligence existing in the field of medical practices is no different from the above mentioned approach.
Though there exist no notional distinctness ,the treatment that a Medical Negligence claim demands are different from its counterparts. In Martin F D'souza v. Mohd Ishfaq ,(AIR 2009 SC 2049) the SC observed ,
"The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of many cases. It depends on the particular facts and circumstances of the case, and also the personal notions of the judge concerned who is hearing the case. However, the board and general legal principles relating to medical negligence need to be understood." This observation will cast an additional responsibility to comprehend the nature and law behind, to everyone who is concerned about Medical Negligence.
Extraordinary Expertise not required
In Hucks v. Cole (1986) 118 New LJ 469. It was observed :
"A medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgement 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."
The professionals are people from which a special skill is expected. The defined skill need not be marvellous or out of the world. Only reasonable and standard execution of such a skill is assumed. The extent of skills that a medical professional required is that, "a practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care."(Halsbury's Laws of England)
When profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.(Hyde and Associates v.J.D. Williams & Co. Ltd.,P.N.L.R).233, CA)
The reflection of the Apex Court's view in Jacob Mathew's case on the respective matter is very vital and its as follows :
"In 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 possess the requisite skill for performing that task.Any reasonable man entering into a profession which require a particular level of learning to be called a professional of that branch, impolitely assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case.A surgeon cannot and does not guarantee that the results of the surgery would invariably be beneficial, much less to the extent of 100 % for the person operated on."
Also the Perspective precipitated under the historic Bolam's case (Bolam v. Friern Hospital Management Committee,(1957)2)All ER 118) is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because the is a body of such opinion that takes a contrary view. Justice McNair further observed that :
"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 for thr 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. "
Deviation from normal Practice and Liability :
In the course of treatment a doctor can follow the learned practices. One cannot accuse a doctor being liable for following an unconventional yet standard practice of treatment.Deviation from normal practice is not necessarily evidence of negligence. 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. (Martin F D'Souza v. Mohd Ishfaq ,AIR 2009 SC 2049)
As rightfully observed in in Hunter v. Hanley (1955 SLT 213 at 217), "In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care".
Some adjudication Challenges
The law laid under the judgement of Kusum Sharma ((2010) 3 SCC 480) casts a boudin duty and obligation to the society to ensure the protection of the medical professionals from inessential harassment and humiliations. For the conservation of such a balanced climate the presence of a proper and balanced umpiring is inevitable. Some of the issues are stated by the court in Martin F D'Souza (AIR 2009 SC 2049) :
(1) Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence . Moreover Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand , particularly in complicated medical matters, for a layman in medical matters like a judge; and
(2) A balance has to be struck in such cases.While doctors who cause death or agony due to medical negligence should certainly be penalised, it must also be remembered that like all professionals doctors too can make errors of judgement but if they are punished for this no doctor can practice his vocation with equanimity.Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgement by a professional in a particular situation.
The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.(Martin F D'Souza, Supra)
Some Recent Developments
The order made by the NCDRC in Pankaj R.Toprani v.Bombay Hospital & Research & Medicals is very prominent in identifying the duty of the doctor. The commission directed the hospital and Doctors to pay a compensation of Rs 31 Lakhs to the patient. And held that the duty of the doctor extends even after the performance of the surgery. The doctor and the hospital at every stage should communicate the exact line of treatment that is been administered.(Smt.Savita Garg v. Director, National Heart Institute ((2004) 8 SCC 56).
In a very recent order made by the NCDRC in Mohan Dai Oswal Cancer Treatment & Research Foundation v.Prashant Sareen the NCDRC cheld that a Medical doctor is vicariously liable for the acts of the team members. He cannot take the defence that he is not part of the procedure and never administered any medicine to the patient.The commission in the same order had said : "Having regard to what the Hon'ble Supreme Court has laid down about 'Duty to care' to be followed by medical professional, viewed from any angle it cannot be construed that 'Duty of Care' of the treating Doctor/head of the department, who is in the case has written the 'Protocol' , 'Ends' with giving the Prescription. At the cost of repetition, we are of the considered view that the Doctor is vicariously liable for the acts of his team which assists him in every sphere in rendering treatment to the Patient".
In a very recent judgment of the apex court, Justice L.Nageswara Rao and Justice Sanjay Kishan Kaul firmed the position of law that a 'Wrong Diagnosis' is not a ground for Medical negligence. The court through conveying its condolences towards the aggrieved and held that the case 'would at best be a case of wrong diagnosis, if that; it certainly cannot be called medical negligence'.
In Dr.Meera Malik v.State of U.P the Allahabad High Court held that a doctor cannot be prosecuted for criminal negligence for the trivial reason that he/she failed to deliver on the assurances given to the patient.
Patient Centric Approach : Judicial Trend
The decision of the court in Arun Kumar Manglik v. Chirayu Health And Medicare Private Limited and Ans.,(2019 3 SCALE 333) urged for the adoption of a patzient centric approach. Also the honourable Apex court observed that in adopting a standard of care, Indian Courts must be conscious of the fact that a large number of hospitals and medical units in our country, especially in rural areas, do not have access to latest technology and medical equipment. As a beneficial measure providing priority to the patients whom are aggrieved ,is an ideal move to make.And it must be accountable, balanced and justifiable.
To conclude with, the law relating Negligence is well settled and when it comes to the ambit of Medical Negligence the approach ensured must be distinct. And in a Medical Negligence scenario the virtuosity of the doctor is not expected to be extraordinary. Reasonable and balanced skills are the only standard. Also, in the practice of medicine, there could be varying approaches to treatment. There can be a genuine difference of opinion. However , while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. This is to avoid a situation where doctors resort to 'defensive medicine' to avoid claims of negligence , often to the detriment of the patient. Hence, in a specific case where unreasonableness in professional conduct has been proper with regard to the circumstances of that cases professional cannot escape liability for medical evidence merely by relying on a body of professional opinion. (Martin F D'Souza, Supra)