“Devaluation of standards in professional ethics is a dangerous trend. Its proliferation in medical profession is more calamitous than in other professional or occupational areas.” – Kerala High Court.

The law on Medical Negligence is yet not fully developed in India and is constantly evolving. This topic is very well covered by Ameet Kumar Deshpande, Adv. High Court of Karnatka. I am sharing some insights from the webinar conducted by Beyond Law CLC, Vikas Chatrath on law relating Medical Negligence.

A doctor does not guarantee cure, but he would be expected to fulfill certain standard of care in his advice, diagnosis and treatment. Hence, there comes an unwritten contract between a doctor and his patient casting a duty of acting with due diligence and care on the doctor.

What does negligence means?

Negligence is an omission to do an act which a reasonable man guided by ordinary considerations regulating human affairs would do or the doing of something which a prudent man would not do. In other words, lack of due diligence or certain degree of care can be generally called negligence.

Important ingredients to constitute negligence are:

1. Duty to exercise due care towards plaintiff

2. Breach of that duty

3. Consequent damage suffered by plaintiff

Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 582 is an English case laying down the rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. This came to be known as Bolam Test.

Though this case was followed in India in several judgments by the Hon’ble Supreme Court, but it was overruled by various subsequent judgments later.

In Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, a landmark judgment, the supreme court of India laid down guidelines in cases of alleged negligence against medical practitioners in India. It clearly stated that there is a need for protecting doctors from frivolous or unjust prosecution. The Court laid down certain guidelines that would govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient:

1. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.

2. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation.

3. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

What does not amount to Medical Negligence?

– In case of error of judgment by the doctor, he shall not be charged against any action of medical negligence. The Courts have observed that merely because the doctor chose a different procedure for treatment to cure the problem and it did not turn out to be favourable, he cannot be held against such error in judgment.

– A doctor performing his duty with due care and caution could not be held liable.

Remedies available against Medical Negligence:

1. Medical Council of India: An aggrieved party can file a complaint of negligence against a Medical practitioner to the concerned State Medical Council. The State Medical Councils are empowered to take action against defaulting doctors either by suspending them or cancelling their registration. However, the Indian Medical Council Act, 1956 does not give them power to compensate the aggrieved party.

2. Civil liability: Consumer Forums: An aggrieved party can also approach the Consumer Court against the defaulting party. In Indian medical association v. V. P. Santha, 1995 SCC (6) 651, the Hon’ble SC have observed that Medical Practitioners are covered under the Consumer Protection Act, 1986 and medical services rendered by them should be treated as services u/s 2(1)(o) of the Act 1986.

3. Criminal liability: There are various provisions in IPC with regard to the behaviour of any person who acts negligently or rashly that result in threat to human life or personal safety or results in death of the person, such person can be punished with imprisonment and/or fine. The Courts have observed that in matter of criminal negligence, the element of “mens rea” must be proved.

I would like to conclude by saying that Doctors are also fallible humans like all of us, let’s not treat them poorly.

Happy Learning!

Angel Kausal

Final Year Student