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Medical Negligence - Medical Negligence Judgments
Medical Negligence - Medical Negligence Judgments
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# Attitude of being non judgmental with patient who have different lifestyle, attitude and
value.
# Alert to their reaction to such a situation which evoke strong negative emotional
response.
# Consciously monitor and control their behavior so that patient's best interest remains
the principle motivation of their action.
(iii) The patient must have suffered damages due to the said breach.
The Supreme Court in the case of Minu B. Mehta vs. B.R. Nayar [1] has held that the
right to receive compensation can only be against a person who is bound to compensate
due to his failure to perform a legal obligation. In many cases doctors have been held
liable for negligent acts, such as removal of a wrong eye or a kidney, based on pecuniary
interest or where minimum facilities were available.
Absence of any of these requirements can result into endanger to the patients life. On
April 9, 1985, the General Assembly of the United Nations adopted the guidelines to
provide framework for Governments, particularly those of developing countries. The
legitimate needs which the guidelines are intended to meet include the protection of
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consumers from hazards to their health and safety and availability of effective consumer
redress were first set up in 1986. The Supreme Court's judgement in the Indian Medical
Association, v. V.P. Shanta and ors.[2] has brought them within its purview. There are
three tiers of disputes redressal forum. At the lowest level are the District Consumer
Disputes Redressal Forum), which entertain compensation claims up to Rs.20 Lakh. At
the next level are the State Consumer Disputes Redressal Forums (one in each state),
where compensation claims between Rs.20 Lakh and Rs. l Crore are made. At the
National Forum, claim of over Rs. 1 Crore are lodged. Those dissatisfied with the
judgment of the lower forum can appeal to a higher forum. The final court of appeal is the
Supreme Court.
There may be one or more perfectly proper standards, and if he conformed to one of
these proper standards, he will not be considered negligent. In case of State of Haryana
v. Santra,[3] the court has decided that in absence of gross mismanagement, liability of
gross negligence will not be succeeded.
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 to possess shall be exercised and exercised
with reasonable degree of care and caution. He does not assure his client of 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 result of surgery would invariably be beneficial, much
less to the extent of 100% for the person operated on. The only assurance which such a
professional 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 practicing and
while undertaking the performance of the task entrusted to him he would be exercising his
skill with reasonable competence. This is what the entire person approaching the
professional can expect. Judged by this standard, a 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.
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whether the person charged has been negligent or not, would be that of an ordinary
competent person exercising ordinary skill in that profession.
In Bolam v. Friern Hospital
Management Committee [4] the following words:
'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.';
The classical statement of law in Bolam's case has been widely accepted as decisive of
the standard of care required both of professional men generally and medical
practitioners in particular. It has been invariably cited with approval before Courts in India
and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough
for the defendant to show that the standard of care and the skill attained was that of the
ordinary competent medical practitioner exercising an ordinary degree of professional
skill. The fact that a defendant charged with negligence acted in accord with the general
and approved practice is enough to clear him of the charge. Two things are pertinent to
be noted. Firstly, the standard of care, when 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.
Secondly, 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 point
of time on which it is suggested as should have been used.
In Syad Akbar v. State of Karnataka [5]. The Supreme Court
has dealt with and pointed
out with reasons the distinction between negligence in civil law and in criminal law. Their
Lordships have opined that there is a marked difference as to the effect of evidence, viz.
the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of
probability is sufficient, and the defendant is not necessarily entitled to the benefit of every
reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to
such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond
all reasonable doubt. Where 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.
For the applicability of the principle should fulfill three essential conditions;
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(i) The opposite party must have been in control of things;
(ii) Common knowledge/accepted norms suggesting that the injury/damage/loss, in itself
cannot occur without negligence; and
Some of the common instances, where this principle can be invoked, are operation on a
wrong patient or a wrong part of the body, transfusion of improper blood, leaving some
foreign material in the body, performing an abortion or any other operation or surgery
which is prohibited in law, etc.
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The same view has been reiterated in Kishan Chand & Anr. v. The State of Haryana [7]
So, the principle which emerges is that a doctor who administers 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. [9] The 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.
Indian Medical Association v. V.P. Shantha and Ors. [10] is a three-Judge Bench
decision. The principal issue which arose for decision by the 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 held 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.
In Poonam Verma v. Ashwin Patel and Ors [11]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, 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.[12] The
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
In State of Harvana and Ors. v. Smt. Santra,[13] Bolam's test has been approved. This
case too refers to liability for compensation under civil law for failure of sterilization
operation performed by a surgeon.
Jacob Mathew v. State of Punjab and Anr[14].It was not the case of the complainant that
the accused was not a doctor qualified to treat the patient whom he agreed to treat. It is a
case of non-availability of oxygen cylinder either because of the hospital having failed to
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keep available a gas cylinder or because of the gas cylinder being found empty. Then,
probably the hospital may be liable in civil law but the accused cannot be proceeded
against under Section 304A IPC on the parameters of Bolam's test.
The right to health and health care is protected under Article 21 of the Constitution of
India, as a right to life and reach of which can move the Supreme Court on High Court
through writ petition. Practice of medicine is capable of rendering great service to the
society provided due care, sincerity, efficiency and skill are observed by doctors. When
doctors peformed their duties towards the patient negligently in a Government hospital,
the servants of the state violated the fundamental right of the patient, guaranteed under
Article 21 of the Constitution.
Medical profession has its own ethical parameters and code of conduct. 'Services' of
medical establishments are more of purchasable commodities and the 'business' altitude
has given an impetus to more and more malpractices and instances of neglect. But the
question is, whether, on the whole, branding the entire medical community as a
delinquent community would serve any purpose or will it cause damage to the patients.
The answer is, no doubt, the later. It is not that measures to check such dereliction are
absent. Victims of medical negligence, considering action against an erring doctor, have
three options.
c. Corrective/ Deterrent mode - Complaint to the State Medical Council demanding that
the doctor's license be revoked.
Jurisdiction of Civil Court was never disputed but its scope was limited for damages only.
Conclusion
In the recent times, professions are developing a tenancy to forget that the self-regulation
which Is at the heart of their profession is a privilege and not a right and a profession
obtains this privilege In return for an implicit contract with society to provide good
competent and accountable service to the public. The self-regulator standards in the
profession have shown a decline and this can be attributed to the overwhelming Impact of
commercialization of the sector. There are reports against doctors of exploitative medical
practices, misuse of diagnostic procedures, brokering deals for sale of human organs,
etc. It cannot be denied that black sheep have entered the profession and that the
profession has been unable to isolate them effectively. Two basic propositions laid down
in law regarding liability for negligence are: firstly, "Breach of Duty" to care and secondly,
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standard of care, i.e. the practitioner must bring to his task a reasonable degree of skill,
knowledge and exercise a reasonable degree of care with caution. Supreme Court has
made necessary guidelines for protection in order to secure life and health of individuals.
End-Notes
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