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Last updated: 21/10/2021
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Synopsis: Medical negligence as a concept has had an interesting development; from concept to the determinants, it has come a long way. This article aims to identify the constituents of medical negligence.
There was a time when doctors, lawyers and teachers were all considered to be nobles. The traditional understanding of ‘nobles’ meant that they belonged to a higher social class, higher standards and morals, and were even considered higher-born. The medical profession still occupies a noble position, although the earlier premise may not be apt anymore.
The field of medicine has undergone a significant change both in terms of advancement of science and technology, and the public’s perception and awareness of treatment and healing. From an Indian perspective, medical profession has transitioned from knowledge or skill-set professed by a privileged few to science that can be measured, learnt and appreciated. The general public has moved away from the comfort of a family doctor and midwife who were mostly general practitioners; towards specialists and super speciality hospitals. The growing awareness among the public has also led to the demand for the best services and sometimes holds the professionals accountable in the courts of law. This paradigm shift has led to rampant commercialization in the healthcare industry and changed the way hospitals and medical professionals approach each situation.
Another significant change came in late 1995, when a three-Judge bench of the Supreme Court, in the case of Indian Medical Association v. V.P. Shantha, (1996) 5 SCC 651, held that doctors are service providers and hence they come under the ambit of Consumer Protection Act, 1986. The absence of court fees and convenience of conducting one’s own case at a Consumer Court led to more and more people seeking this route to claim reliefs in cases of medical negligence.
It is not a very welcome trend to question each and every act of the medical professional. But, this is a delicate area where law and medicine meet.
Concept of medical negligence
In Dr. P.B. Desai v. State of Maharashtra & Anr., IV (2013) CPJ 63 (SC), the Supreme Court observed that when a physician agrees to attend a patient, there is an unwritten contract between the two. The patient entrusts himself to the doctor and the doctor agrees to do his best, at all times, for his patient. This doctor-patient relationship gives rise to a doctor’s legal obligations towards his patient. Failure to meet the obligations is termed as negligence.
Negligence is an awkward term to use, especially for a medical professional. To hold the act of a medical professional as ‘negligent’ not only means that he acted negligently but it also questions the skill, knowledge and expertise he has gathered for over several years. Generally, for the purpose of establishing liability and seeking relief under civil law or tort, an act of a person is considered to be ‘negligent’ if he does an act which no ordinary or prudent man would have done in a given circumstance, or if he does not do an act which a reasonable person would have done in a given circumstance.
However, when it comes to actions of skilled persons like medical professionals, slightly different criteria is adopted to determine negligence. An act of a medical professional can be held to be ‘negligent’ if he lacks basic minimum skill set that is required of him or he has failed to maintain basic standards that are expected of him while discharging his duty.
Factors that determine medical negligence
It was very aptly described in the celebrated and oft-quoted English case of Bolam v. Friern,  2 ALL E.R, pg. 118, that “in the case of medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time.”
The definition has 2 important points -
The Bolam’s test has been challenged in its native country, England, which does not subscribe to the test in its entirety (as held in the case of Bolitho v. City and Hackney Health Authority,  4 All ER 771. However, in India, 3-Judge benches of the Supreme Court, through the cases Jacob Mathew v. State of Punjab & Anr., III (2005) CPJ 9 (SC) and State of Punjab v. Shiv Ram & Ors., (2005) 7 SCC 1, have relied on and adopted the Bolam’s test and it has stood the test of time.
Effect of moral and ethical factors
At the very outset, it must be clarified that ‘immorality’ cannot be attributed to any act of the medical professional. The aspect of criminality is entirely different and it will be judged on the basis of established criminal laws looking at the intention of the professionals. However, the question of moral misconduct or moral culpability has come up before the Courts.
The Supreme Court, in the case of Dr. P.B. Desai v. State of Maharashtra, IV (2013) CPJ 63 (SC), noted thus -
“…. law of tort is ultimately not concerned with the moral culpability of the defendant (doctor), even if the language of fault is used in determining the standard of care. From the point of view of civil law it may be appropriate to impose liability irrespective of moral blameworthiness.”
Thus, the question of whether a doctor is morally guilty or not is not relevant to the Courts in determining damages or compensation.
Ethical standards have been considered very sacred and significant both medically and legally. This gives rise to a sense of accountability to the professionals and makes them evaluate their decisions carefully before taking them. Failure to follow ethical practices may give rise to actions before the Medical Councils for professional misconduct and unethical practise.
The Medical Council of India which is a regulatory body for doctors has published the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (‘the Regulation, 2002’). The Regulation, 2002 lay down various ethical practices for doctors and should be compulsorily followed. Some of the ethical standards that a doctor must abide by are -
Doctors have to maintain absolute confidentiality in their treatment of patients. This duty of maintaining confidentiality arises from the very nature of work the doctor performs and the importance of keeping the communication privileged ensures proper treatment.
According to Regulation 1.3.1 and 1.3.2 of Regulation, 2002, doctors and hospitals are duty bound to maintain the medical records of all the patients they have treated for a period of 3 years. When a patient or his authorised representative seeks such records, they are duty bound to furnish a copy of all the medical records within 72 hours to the patients or their authorized representatives.
According to Regulation 1.8 of Regulation, 2002, a physician should announce his fees before rendering service and not after treatment is under way. Further, as per Regulation 3.7.1 of the Regulation, 2002, a physician shall clearly display his fees and other charges on the board of his chamber and/or the hospitals he is visiting.
This duty stems from the principle of ‘bodily autonomy’ which means the person has the right to control his body and decide what should be done with it. Therefore taking the prior consent of the patient before treatment is mandatory, unless in cases of emergency where the patient’s consent cannot be obtained.
The Supreme Court, in the case of Samira Kohli v. Prabha Manchanda (Dr.) & Anr., I (2008) CPJ 56 (SC), held that a doctor has to seek and secure consent of the patient before commencing a treatment. The consent should be real and valid. Further ‘adequate information’ should be furnished by the doctor which should enable the patient to make a balanced judgment on submitting himself to treatment or otherwise.
Legal safeguards available to medical professionals
The legal system has evolved to balance between safeguarding a patient from callous doctors and protecting doctors from unscrupulous litigants.
The primary duty of the doctor is to ensure that he follows standard medical practices and protocols while discharging his duty and providing treatment. The Supreme Court, in case of Kusum Sharma & Ors. v. Batra Hospital and Medical Hospital, I (2010) CPJ 29 (SC), observed that “a medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.” Thus, as long as this is followed the doctor is safeguarded; without giving undue weightage to the outcome of the treatment which is not entirely in the hands of the medical professional. Medical science is not an exact science and a certain flexibility should be available to the doctors to exercise their discretion and judgment in a given case after following the required safeguards.
Further, doctors are entitled to substantiate their stand during allegations of medical negligence by submitting authoritative texts and expert opinions which validate their treatment procedure and approach.
Interestingly in consumer cases, the National Consumer Forum, in Dr. Hema & Ors. v. S. Jayan & Ors., II (2016) CPJ 306 (NC), held that if a hospital does not charge anything from any person availing services and all patients are given free service, hospital is outside the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Consumer Protection Act, 1986. Although there are differing opinions, where the courts have also held that government hospitals providing free services can also come under judicial scrutiny, however, it is safe to say that normally consumer courts would only assume jurisdiction where treatments are charged or services are rendered for a price.
Way forward for the profession and hospitals
The importance of healthcare cannot be ignored even for a moment. The healthcare industry is growing at an astonishing pace and is becoming increasingly commercialized. Therefore, it is important that this industry be regulated, however, the challenge is to find the right balance between how much of a regulation is actually required and who should regulate the industry.
In the case of State of Punjab v. Shiv Ram & Ors., (2005) 7 SCC 1, the Supreme Court observed that self-regulation which is at the heart of medical profession is a privilege and not a right. The profession obtains the privilege in return for an implicit contract with the society to provide good, competent and accountable service to the public.
It is often misunderstood that the courts come in the way to doctors’ duties. However, the settled position of law is that when reasonable competence is shown by doctors and basic standards of medical practice are followed, the Courts would not intervene and the law would protect their interests.
In Martin F.D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1, the Supreme Court aptly observed that law is a watchdog, not a bloodhound and the court held that doctors doing duty with reasonable care would not incur liability even if their treatment failed. Law’s role as a watchdog instead of a bloodhound is recommended for a seemly synergy between law and medicine. Hence, the shifting trend is towards legally protecting the doctors practicing their solemn duty with care and caution and only when interference is required, the laws may act as a check on the questionable practices that may occur.
DISCLAIMER: The information provided in this article is for educational purposes only. The same cannot be construed as legal advice.
J.K. Legal, Bangalore
Samartha founded J.K. Legal, a law firm located in Bangalore. Apart from medico-legal cases, his areas of practice include dispute resolution and commercial law, family laws, real estate, anti-corruption, criminal laws and property litigation. He is designated as the Assistant Registrar for Bangalore International Mediation Arbitration and Conciliation Centre (BIMACC), a Dispute Resolution Centre recognized by the United Nations.
Samartha received his LL.M in International Trade Law from University of Essex, UK and has 8 years of practice.
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