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is Law
     Right of
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-:
Negligence And Proof :-

 

   

Cases
of Negligence
     Greater
Burden of Proof
    
Public
Hospital Negligence
  


    

 


Negligence
of Doctors: Negligence of doctor is
defined as breach of responsibility or
duty 
owed to his patient and which
results in actual damage to his patient.

RASHNESS:
An act of omission or commission when a
reasonable person ought to do or abstain
respectively and result in damage amounts
to rashness.

MALPRACTIC



: Any breach of morals,
ethics or duty in performing professional
work amounts to malpractice. Malpractice
is genus and negligence and rashness is
species of it.

MISJUDGMENT:

Error of judgment at a given moment could
mislead a person to result in damage to a
person. Misjudgment does not amount to
malpractice or negligence or rashness.
There is very thin line dividing
misjudgment and malpractice. This is the
inherent risk involved in taking plea of
misjudgment by doctors.

MISADVENTURE
AND EMERGENCY SITUATION
:
In
unusual situation and emergency in
goodfaith a person may resort to
misadventure to save life of a person who
otherwise is going to be dead due to
disease or accident. This amounts to
experimentation in extreme situation.
Again there is thin line dividing
misadventure malpractice so one has to be
careful in taking plea of misadventure.

ONUS
OF PROOF OF NEGLIGENCE:




   (1)
Onus of proving that doctor is negligent
is on the person who alleges negligence.



   (2) It is difficult to prove negligence of
doctor.



   (3) It is almost impossible to
prove negligence of doctor if he has taken
following precaution:



         
[a.] Doctor has
obtained inform consent.

          

         
[b.] 
If doctor has proper registration
from medical council.

        

         
[c.] 
If doctor has keep proper record.

   

         
[d.] 
If the doctor has explained to the
relatives and patient all acts about
disease investigation,

                
procedures,
treatment, surgery and outcome. 



         
[e.]  If doctor has not
anything secretly or in closed
places like O.T., I.C.C.U 
(where patients

                
relative’s do not have access)




CASES OF NEGLIGENCE

Case
laws which speak and differentiate
negligence from misjudgment or
misadventure are as below:

LIABILITY
OF MEDICAL MEN
:
A person
who holds himself out ready to give
medical advice and treatment 
impliedly undertakes that he is
possessed of skill and knowledge for the
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
the administration of that treatment. A
breach of any of those duties gives rights
of action for negligence to the patient.
The practitioner must bring 
to his task a reasonable degree of
skill and knowledge and must exercise a
reasonable degree of care.

DEGREE
OF SKILL
:
Neither
the very highest nor a very low degree of
care and competence judged in the light of
the particular circumstance of each case
is what the law requires. ( Halsbury’s
laws of the England, 3rd Ed.
Vol 26 p 17 )

MISADVENTURE:
The doctor no doubt has
a discretion in choosing treatment which
he proposes to give to the patient and
such discretion is relatively ampler in
cases of emergency [Laxman Balkrishnan 
Joshi v. Timbak 
Bapu Godbole 1968 ACJ 183 at p 187
(SC). Lord Denning said in Roe v. Minister
of Health (1954) 2 QB 66]:


” One
final word. These two men have suffered
such terrible consequences that there is a
natural feeling that they should be
compensated. But we should be doing a
disservice to the 
community at large if we are to
impose liability on hospitals and doctors
for everything that happens to go wrong.
Doctors would be led to think more of
their own safety than of the good of their
patients. Initiative would be stifled and
confidence shaken. A proper sense of
proportion requires us to have regard to
the conditions in which hospitals and
doctors have to work. We must insist on
due care for the patient at every point,
but we must not condemn as negligence that
which is only a misadventure”

ERROR
OF JUDGEMENT
: In Hatcher v. Black
[(1954) Times, 2nd July]

Lord Denning explained the law on the
subject of negligence against doctors and
hospitals in the following words:
“Before I consider the individual
facts, I ought to explain to you the law
on this matter of negligence against
doctors and hospitals. Mr. Marvan Evertt
sought to liken the case against a
hospital to a motor car accident or to an
accident in a factory. That is the wrong
approach. In the case of accident on the
road, there ought not to be any accident
if everyone used proper care; and the same
applies in a factory; but in a hospital
when a person who is ill goes in for
treatment, there is always some risk, no
‘matter what care is used. Every
surgical operation involves risks. It
would be wrong , and indeed bad law, to
say that simply because of misadventure or
mishap occurred, the hospital and the
doctors are thereby liable. It would be
disastrous to the community if it were so.
It would mean that a doctor examining a
patient or a surgeon operating at a table
instead of getting on with his work, would
be forever looking over shoulder to see if
someone was coming up with a dagger. His
professional reputation is as dear to him
as his body, perhaps more so, and an
action for negligence can wound his
reputation as severely as a dagger can his
body, you must not, therefore, find him
negligent simply because something happens
to go wrong; if, for instance, one of the
risks inherent in an operation actually 
takes place or some complication
ensues which lessens or takes away the
benefits that were hoped for, or if in a
matter of opinion he makes an error of
judgement. You should only find, him
guilty of negligence when he falls short
of the standard of a reasonably skillful
medical man, in short, when he is
deserving of censure for negligence in a
medical man is deserving of censure”

RISK
AND EXPERIENCE
:
Equally
pertinent are the observations of Lord
Denning in Roe’s case [(1954) 2 QB
66]
to the following effect: ” It
is so easy to be wise after the event and
to condemn as negligence that which was
only a misadventure. We ought always to be
on our guard against it, especially in
cases against hospitals and doctors.
Medical science has conferred great
benefit on mankind, but these benefits are
attended by considerable risk. Every
surgical operation is attended by risk. We
cannot take the benefit without taking the
risk. Every advance in technique is also
attended by risk. Doctors like the rest of
us have to learn by experience; and
experience often teaches in a hard way.
Some thing goes wrong and shows up a
weakness and then it is put right. That is
just what happens here. The doctor did not
know that there would be undetectable
cracks in ampules, but it was not
negligent of him not to know it at that
time. We must not look at the 1947
accident with 1954 spectacles”.

WRONG
DIAGNOSIS VERSUS MISTAKEN DIAGNOSIS
:
The diagnosis of an
aliment is normally the first matter with
which the medical man is concerned. There
can be no doubt that he may find himself
held liable in an action for negligence if
he makes a wrong diagnosis and thereby
causes injury to the patient. But it must
be remembered that a mistaken diagnosis is
not necessarily a negligent diagnosis.
” No human being is infallible and in
the present state of science even the most
eminent specialist may be at fault in
detecting the true nature of a diseased
condition. A practitioner can only be held
liable in this respect it his diagnosis is
so palpably wrong as to prove negligence,
that is to say if his mistake is of such
nature as to imply an absence of
reasonable skill and care on his part,
regard being had to the ordinary level of
skill in the profession” [ see Nathan
: Medical Negligence, 1957 edition at pp.
43-44] [ J.N. Shrivastava v.
Rambiharilal AIR 1982 MP 132 at pp.
135-136 & 137]


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GREATER
BURDEN OF PROOF

Lord
Denning M.R. in Hucks v. Cole [(1968)
118 New L J 469]
said, ” A charge of
professional negligence against a medical
man was serious. It stood on a different
footing to a charge of negligence against
the driver of am motor car. The
consequences were far more serious. It
affected his professional status and
reputation. The burden of proof was
correspondingly greater. As the charge was
so grave, so should the proof be clear.
With the best will in the world, things
some times went amiss in surgical
operations 
or medical treatment. A doctor was
not to be held negligent simply because
something went wrong. He was not liable
for taking one choice out of two or for
favoring one school rather than another.
He was only liable when he fell below the
standard of a reasonably competent
practitioner in his field so much so that
his conduct might be deserving of censure
or inexcusable” [Ram Biharilal v.
Dr. J.N. Srivastava, AIR 1985 MP 150 at
pp. 157-158.]

ORDINARY
CARE:
In this context it will be useful to
extract a passage from the address given
man Mc. Nair, J. in Bolam v. Friern
Hospital Management Committee [(1957) 2
All ER 118]
While explaining the law
to jury:-


Counsel for the plaintiff put in it this
way, that in the case of a medical man
negligence means failure to act in
accordance with the standards of
reasonably competent medical man at the
time. That is a perfectly accurate
statement as long as it is remembered that
there may be one or more perfectly proper
standards; and if a medical man confirms
with one of those proper standards then he
is not negligent.” MC. Nair, J in the course 
of the same address made reference
to the observation of Lord Clyde in
Scottish case, Hunter v. Hanlay [1955
SLT p 213 at p 217]  
 
” 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 acting with ordinary
care.”

DEPARTURE
FROM ORTHODOX TREATMENT

In
Clark v. Maclenna [01983) 1 All ER 416] 
 Peter
Pain J. after referring to various
authorities, stated thus: “
Although in an action in negligence the
onus of proof normally rested on the
plaintiff, in a case where a general duty
of care arose and there was a failure to
take a recognized precaution and that
failure was followed by the very damage
which that precaution was designed to
prevent, the burden of proof lay on the
defendant to show, first , that the damage
suffered by the plaintiff did not result
from the breach. Accordingly a doctor owed
a duty to his patient to observe the
precautions which were normal in the
course of the treatment that he gave.
Where a patient suffered damage after
there had been a departure from the
orthodox course of treatment the court had
to inquire whether the doctor had taken
all proper factors into account prior to
taking action in order to determine
whether that departure was
justified.



” NO CONSENT NEEDED: Any
failure to perform an emergency operation
for want of consent amounts to negligence.
[Dr. TT Thomas v. Smt Elisa, ARI 1987
Ker 52 at pp 54-56; but see Usha v. Dr.
G.P. Namboodiri, 1986 ACJ 141.]

FAILURE
TO INFORM ABOUT EVERY RISK
:
Doctors
owe to their patients a duty in tort as
well as in contract. It is expected of
such professional man that he should show
a fair, reasonable and competent degree of
skill; it is not required that he should
use the highest degree of skill , for
there may be persons who have higher
education and greater advantages, then he
has, nor will he be held to have
guaranteed a cure. Although the standard
is a high one, a medical practitioner
should not be found negligent simply
because one of the risks inherent in an
operation of that kind occurs, or because
he has failed to warm the patient of every
risk involved in a proposed course of
treatment [see Salmond on the Law of
Torts, 16th Edn., p 232].

NO
CONTRACT NEEDED:

The
civil liability of medical men towards
their patient is perhaps compendiously
stated in Rex v. Batemen [(1925) 94 lik
791] as follows [p 794]”

” If a
person holds himself out as possessing
special skill and knowledge and he is
consulted, as possessing such skill and
knowledge, by or on behalf of patient he
owes a duty to the patient 
to use due caution in undertaking
the treatment. If he accepts the
responsibility and undertakes the
treatment and the patient submits to his
direction and treatment accordingly, he
owes a duty to the patient to use
diligence, care, knowledge, skill and
caution in administering the treatment. No
contractual relation is necessary, nor is
it necessary that the service be rendered
for reward….. The law requires a fair
and reasonable standard of care and
competence. This standard must be reached
in all the matter above mentioned. If the
patient’s death has been caused by the
defendant’s indolence or carelessness,
it will not avail to show that he had
sufficient knowledge; nor will it avail to
prove that he was diligent in attendance,
if the patient has been killed by his
gross ignorance and unskillfulness. As
regards cases where incompetence is
alleged, it is only necessary to say that
the unqualified practitioner cannot claim
to be measured by any lower standard than
that which is applied to a qualified man
and unqualified man. As regards cases of
alleged recklessness, juries are likely to
distinguish between the qualified man.
There can be recklessness in undertaking
the treatment and recklessness in the
conduct of it. It is, no doubt,
conceivable that a qualified man may be
held liable for recklessly undertaking a
case which he knew, or should have known,
to be beyond his powers of for making his
patient the subject of reckless
experiment. Such cases are likely to be
rare” [see Charlesworth on
Negligence, Fifth Edn. Pp 181 and 182, par
272].  

DEVIATION 
FROM 
NORMAL 
PRACTICE
:
The
duty of a medical practitioner arises from
the fact that he does something to a human
being which is likely to cause physical
damage unless it is caused inspite of
excising proper care and skill. There is
no question of warranty, undertaking or
profession of skill. The standard of care
and skill to satisfy the duty in tort in
that of the ordinary 
competent medical practitioner
exercising the ordinary degree of
professional skill. A defendant charged
with negligence can clear himself if he
shows that he acted in accordance with
general and approved practice. It is not
required in discharge of his duty of care
that he should use the highest degree of
skill, since they may never be acquired.
Even deviation from normal, professional
practice is not necessarily evidence of
negligence. Tylor’s
Principles and Practice of Medical 
Jurisprudence [12th
edn.,Vol.(1). At p 55 ]states:

“Doctors
must be profoundly indebted to Lord
justice Denning for his summing-up in the
case of Hatcher v. Black, [(1954)The
Times, June 29th & 30th,July 
1st and 2nd
]. The details
of the negligence alleged are of no
importance to the principles involved, but
the generalization made in the judge’s
summing up speech was vital to a fair and
just appraisal of doctor’s
responsibilities. He said, in a hospital,
when a person was ill and came in for
treatment, no matter what care was used;
there was always a risk and it would be
wrong and bad law to say that simply
because a mishap occurred the hospital
doctors were liable… The jury must not,
therefore, find him negligent simply
because of risks inherent in an operation
that actually took place, or because in a
matter of opinion he made an error of
judgement. They should find him guilty
when he had fallen short of the standard
of reasonable medical care, when he was
deserving of censure.” It
is also necessary to bear in mind the
following warning given to courts by
Goddard L.J. as he then was, in Mohan v.
Osborne, (1939) 2 K B. 14, p 47]: “
I would not for a moment attempt 
to define in vacuum the extent of a
surgeon’s duty in an operation beyond
saying that he must use reasonable care,
nor can I imagine anything more disastrous
to the community than to leave it to a
jury or to a judge, if sitting alone to
lay down what it is proper to do in any
particular case without the guidance of
witnesses who are qualified to speak on
the subject.



” TO 
DEMAND 
MORE 
FROM 
DOCTORS Moreover,
it is a principle of civil liability, that
a man must be considered to be responsible
for the probable consequences of his act.
To demand more of him is too harsh a rule.
According to the law of negligence, the
test whether the consequences were
reasonably foreseeable is a criterion
alike of culpability and of compensation,
as held by the Privy Council in Overseas
Tankship etc. v. Morts Dock etc. [(1961)1
All ER 404] In
Lord Nathan’s Medical Negligence [1957
edn.] the following observation of Lord
President Clyde in Hunter v Hanley
[(1955)SLT 213] is relied upon. “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 a
acting with reasonable care.  



NO 
WARRANTY “
The medical man must therefore exercise
reasonable skill and care, measured by the
standard of what is reasonably to be
expected from the ordinary competent
practitioner of his class. If he does so
he will have discharged his duty and
cannot be held answerable even if the
treatment has untoward results. For the
medical man is not an insurer; he does not
warrant that his treatment will succeed or
that he will perform a cure. Naturally he
will not liable if, by reason of some
peculiarity in the frame of constitution
neither of a patient which was nor
reasonably to be anticipated a treatment
in ordinary circumstances would be sound
has unforeseen results. But he will not
even be liable for every slip of
accident.”  



STANDARD 
CARE 
NO 
INSURANCE 
TO 
SLIPS “
The standard of care, which the law
requires, is not insurance against
accident slips. It is such a degree of
care as a normally skillful member of the
profession may reasonably be expected to
exercise in the actual circumstances of
the case in 
question. It is not every slip or
mistake which imports negligence.” ” Thus in order to
decide whether negligence is established
in any particular case the act or omission,
of course of conduct complained, of must
be judged not by ideal standards nor in the
abstract, but against the background of
the circumstances in which the treatment
in question was given. This is not to say
that the standard of skill or care
required varies with the circumstances of
each case; the standard is always the
same, namely, the conduct of ordinary
competent and careful practitioner, but
the degree of care required to comply with
that standard is conditioned by the actual 
circumstances of the case. It is
the degree of care, which varies not the
standard. Lord Nathan has observed; “
The Burden of proving negligence upon the
person who asserts it. In medical
negligence cases, therefore it is for the
patient to establish his claim against the
medical man and not for the medical man to
prove that he acted with sufficient care
and skill”. “It
is by means of evidence of course, that
the patient will seek to, and indeed must,
establish his claim, but the evidence he
adduces may take several different forms.
The most important form, ordinarily, is
oral evidence, which may consist both of
sworn testimony of the patient himself and
other persons upon matters of fact such as
what was done and what was said upon the
relevant occasions, and of the sworn
testimony of expects upon matters of
opinion, such as the correct mode of
treatment for a specific condition. But
the patient is not confined to oral
evidence he may also rely upon documentary
evidence in order to establish the facts
upon which he bases his claim of
negligence.” In
an unreported judgement in Amlia Flounders
v Dr. Clement Perreira [1947 O.C.J. App
No. 27 of 1974] Chagla Ag. C.J. and
Bhagwati J. observed: “
The law on the subject is really not in
dispute. The plaintiff has to establish
first that there had been a want of
competent care and skill on the part of
the defendant to such an extent as to lead
to a bad result. The plaintiff had also to
establish the necessary connection between
the negligence of the defendant and the
ultimate death of the plaintiff’s
son.” In
that case, large number of experts were
examined in regard to the treatment given
by the doctor and it was held that the
doctor was not negligent and the appeal
court confirmed the original judgement [
in the case by Tendolkar J. dated March 5,
1947, which is also an unreported
judgement] but in which Tendolkar J.
observed.: Actions
for negligence in India are to be
determined according to the principles of
English Common law and those principles
have been set out in an action for
negligence against a medical man by Erle
C.J. in Rich v Pierpont [(1862) 3 F& F
36] in these words: “
It was enough to make the defendant liable
that same medical man, of for greater
experience or ability might have used a
greater degree of skill, nor that even he
might possible have used some greater
degree of care. The question was whether
there had been a want of competent care
and skill to such an extent as to lead to
the bad result considering how much the
treatment of a case dependent upon its
varying phases, which changed as quickly
as the shifting hues of the heavens, it
was hard for one medical man to come
forward and condemn the treatment of a
brother in the profession, and say that he
would have done this and that, when
probably, had he been in a position to
judge the case from the first he would
have done no better.” 



STANDARD 
CARE 
DOES 
NOT 
MEAN 
CARE 
BY 
GIFTED 
DOCTORS ‘It is clear, therefore,
that the degree of competent care and
skill by which the defendant is to be
judged is such as may be reasonably
expected from an average person in his
profession and not from any person
specially gifted or qualified. The
defendant in this case is a general
practitioner and is to be judged by the
average standard of a general practitioner
and not even 
of a consultant, much less of a
surgeon, who cures diseases by operation
and not by medical treatment. Moreover, in
order to succeed, it is not sufficient for
the plaintiff to establish the negligence
of the defendant; it is necessary further
to establish the necessary connection
between the negligence and ultimate
death.”


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PUBLIC HOSPITALS
NEGLIGENCE

The
present arrangements, in the public
sector, for curing the sick and injured,
suffer from a multitude of weaknesses viz.
Inadequate number of hospitals and
dispensaries, the rude, callous and
indifferent behaviour of the doctors
coupled with the inaccessibility of senior
doctors, their carelessness, poor hygienic
and sanitary 
conditions, and above all.
Environment compelling the patient to
switch over to private clinics and nursing
homes if only one is to survive. Attempts,
though made, to solve these problems are
far from satisfactory. In
the case of Hanuman Prasad 
Darban v. Dr. C.S. Sharma, S.M.S.
Hospital, Jaipur [Complaint case No.
3/1989 before the Consumer Disputes
Redress Commission, Rajasthan, Jaipur],
the Commission held that if a person gets
the service rendered by the doctors in the
hospital run by the State Govt. such
services are free services and no
consideration whatsoever is paid by that
person. ” Service ” as defined
in sec. 2 (1) (0) does not include any
service free of charge or under any
contract of personal service. It is true
that the doctors are paid salary from the
public exchequer and the Govt. employs
them on payment of salary and the Govt.
while running the hospitals gives free
medical service to its citizens and for
availing of their services it pays the
salary to the doctor, but any citizen who
is entitled to free medical services from
the hospitals run by the Govt. cannot be
said to have hired the services for
consideration. So it could not be said
that he is a “consumer” within
the meaning of section2(1) (d)

Public hospital who are having paid beds
and are charging meagre fees are now under
consumer Protection  act 1986. same
is the case  with charitable and semi
charitable hospital.


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    Home    About Us   Contact Us

 

 

  ” ); //–>

   

 
Medico Legal
 

 

   

What is Law     Right of Doctors     Responsibilities     Negligence     Consents     Records     Cases
   
Legislations    Medical Ethics    FAQ’s

 
 

-: Negligence And Proof :-

 
   

    
 

Negligence of Doctors: Negligence of doctor is defined as breach of responsibility or duty  owed to his patient and which results in actual damage to his patient.

RASHNESS: An act of omission or commission when a reasonable person ought to do or abstain respectively and result in damage amounts to rashness.

MALPRACTIC : Any breach of morals, ethics or duty in performing professional work amounts to malpractice. Malpractice is genus and negligence and rashness is species of it.

MISJUDGMENT: Error of judgment at a given moment could mislead a person to result in damage to a person. Misjudgment does not amount to malpractice or negligence or rashness. There is very thin line dividing misjudgment and malpractice. This is the inherent risk involved in taking plea of misjudgment by doctors.

MISADVENTURE AND EMERGENCY SITUATION: In unusual situation and emergency in goodfaith a person may resort to misadventure to save life of a person who otherwise is going to be dead due to disease or accident. This amounts to experimentation in extreme situation. Again there is thin line dividing misadventure malpractice so one has to be careful in taking plea of misadventure.

ONUS OF PROOF OF NEGLIGENCE:

   (1) Onus of proving that doctor is negligent is on the person who alleges negligence.

   (2) It is difficult to prove negligence of doctor.

   (3) It is almost impossible to prove negligence of doctor if he has taken following precaution:

          [a.] Doctor has obtained inform consent.
          
          [b.]  If doctor has proper registration from medical council.
        
          [c.]  If doctor has keep proper record.
   
          [d.]  If the doctor has explained to the relatives and patient all acts about disease investigation,
                 procedures, treatment, surgery and outcome. 

          [e.]  If doctor has not anything secretly or in closed places like O.T., I.C.C.U  (where patients
                 relative’s do not have access)


CASES OF NEGLIGENCE

Case laws which speak and differentiate negligence from misjudgment or misadventure are as below:

LIABILITY OF MEDICAL MEN: A person who holds himself out ready to give medical advice and treatment  impliedly undertakes that he is possessed of skill and knowledge for the 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 the administration of that treatment. A breach of any of those duties gives rights of action for negligence to the patient. The practitioner must bring  to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.

DEGREE OF SKILL: Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstance of each case is what the law requires. ( Halsbury’s laws of the England, 3rd Ed. Vol 26 p 17 )

MISADVENTURE: The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency [Laxman Balkrishnan  Joshi v. Timbak  Bapu Godbole 1968 ACJ 183 at p 187 (SC). Lord Denning said in Roe v. Minister of Health (1954) 2 QB 66]:

” One final word. These two men have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a disservice to the  community at large if we are to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure”

ERROR OF JUDGEMENT: In Hatcher v. Black [(1954) Times, 2nd July] Lord Denning explained the law on the subject of negligence against doctors and hospitals in the following words: “Before I consider the individual facts, I ought to explain to you the law on this matter of negligence against doctors and hospitals. Mr. Marvan Evertt sought to liken the case against a hospital to a motor car accident or to an accident in a factory. That is the wrong approach. In the case of accident on the road, there ought not to be any accident if everyone used proper care; and the same applies in a factory; but in a hospital when a person who is ill goes in for treatment, there is always some risk, no ‘matter what care is used. Every surgical operation involves risks. It would be wrong , and indeed bad law, to say that simply because of misadventure or mishap occurred, the hospital and the doctors are thereby liable. It would be disastrous to the community if it were so. It would mean that a doctor examining a patient or a surgeon operating at a table instead of getting on with his work, would be forever looking over shoulder to see if someone was coming up with a dagger. His professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body, you must not, therefore, find him negligent simply because something happens to go wrong; if, for instance, one of the risks inherent in an operation actually  takes place or some complication ensues which lessens or takes away the benefits that were hoped for, or if in a matter of opinion he makes an error of judgement. You should only find, him guilty of negligence when he falls short of the standard of a reasonably skillful medical man, in short, when he is deserving of censure for negligence in a medical man is deserving of censure”

RISK AND EXPERIENCE: Equally pertinent are the observations of Lord Denning in Roe’s case [(1954) 2 QB 66] to the following effect: ” It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefit on mankind, but these benefits are attended by considerable risk. Every surgical operation is attended by risk. We cannot take the benefit without taking the risk. Every advance in technique is also attended by risk. Doctors like the rest of us have to learn by experience; and experience often teaches in a hard way. Some thing goes wrong and shows up a weakness and then it is put right. That is just what happens here. The doctor did not know that there would be undetectable cracks in ampules, but it was not negligent of him not to know it at that time. We must not look at the 1947 accident with 1954 spectacles”.

WRONG DIAGNOSIS VERSUS MISTAKEN DIAGNOSIS: The diagnosis of an aliment is normally the first matter with which the medical man is concerned. There can be no doubt that he may find himself held liable in an action for negligence if he makes a wrong diagnosis and thereby causes injury to the patient. But it must be remembered that a mistaken diagnosis is not necessarily a negligent diagnosis. ” No human being is infallible and in the present state of science even the most eminent specialist may be at fault in detecting the true nature of a diseased condition. A practitioner can only be held liable in this respect it his diagnosis is so palpably wrong as to prove negligence, that is to say if his mistake is of such nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession” [ see Nathan : Medical Negligence, 1957 edition at pp. 43-44] [ J.N. Shrivastava v. Rambiharilal AIR 1982 MP 132 at pp. 135-136 & 137]

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GREATER BURDEN OF PROOF

Lord Denning M.R. in Hucks v. Cole [(1968) 118 New L J 469] said, ” A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of am motor car. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best will in the world, things some times went amiss in surgical operations  or medical treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable for taking one choice out of two or for favoring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his field so much so that his conduct might be deserving of censure or inexcusable” [Ram Biharilal v. Dr. J.N. Srivastava, AIR 1985 MP 150 at pp. 157-158.]

ORDINARY CARE: In this context it will be useful to extract a passage from the address given man Mc. Nair, J. in Bolam v. Friern Hospital Management Committee [(1957) 2 All ER 118] While explaining the law to jury:-

Counsel for the plaintiff put in it this way, that in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical man at the time. That is a perfectly accurate statement as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man confirms with one of those proper standards then he is not negligent.” MC. Nair, J in the course  of the same address made reference to the observation of Lord Clyde in Scottish case, Hunter v. Hanlay [1955 SLT p 213 at p 217]     ” 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 acting with ordinary care.”

DEPARTURE FROM ORTHODOX TREATMENT In Clark v. Maclenna [01983) 1 All ER 416]   Peter Pain J. after referring to various authorities, stated thus: “ Although in an action in negligence the onus of proof normally rested on the plaintiff, in a case where a general duty of care arose and there was a failure to take a recognized precaution and that failure was followed by the very damage which that precaution was designed to prevent, the burden of proof lay on the defendant to show, first , that the damage suffered by the plaintiff did not result from the breach. Accordingly a doctor owed a duty to his patient to observe the precautions which were normal in the course of the treatment that he gave. Where a patient suffered damage after there had been a departure from the orthodox course of treatment the court had to inquire whether the doctor had taken all proper factors into account prior to taking action in order to determine whether that departure was justified.

” NO CONSENT NEEDED: Any failure to perform an emergency operation for want of consent amounts to negligence. [Dr. TT Thomas v. Smt Elisa, ARI 1987 Ker 52 at pp 54-56; but see Usha v. Dr. G.P. Namboodiri, 1986 ACJ 141.]

FAILURE TO INFORM ABOUT EVERY RISK: Doctors owe to their patients a duty in tort as well as in contract. It is expected of such professional man that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill , for there may be persons who have higher education and greater advantages, then he has, nor will he be held to have guaranteed a cure. Although the standard is a high one, a medical practitioner should not be found negligent simply because one of the risks inherent in an operation of that kind occurs, or because he has failed to warm the patient of every risk involved in a proposed course of treatment [see Salmond on the Law of Torts, 16th Edn., p 232].

NO CONTRACT NEEDED: The civil liability of medical men towards their patient is perhaps compendiously stated in Rex v. Batemen [(1925) 94 lik 791] as follows [p 794]”

” If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of patient he owes a duty to the patient  to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward….. The law requires a fair and reasonable standard of care and competence. This standard must be reached in all the matter above mentioned. If the patient’s death has been caused by the defendant’s indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor will it avail to prove that he was diligent in attendance, if the patient has been killed by his gross ignorance and unskillfulness. As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man and unqualified man. As regards cases of alleged recklessness, juries are likely to distinguish between the qualified man. There can be recklessness in undertaking the treatment and recklessness in the conduct of it. It is, no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers of for making his patient the subject of reckless experiment. Such cases are likely to be rare” [see Charlesworth on Negligence, Fifth Edn. Pp 181 and 182, par 272].  

DEVIATION  FROM  NORMAL  PRACTICE: The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is caused inspite of excising proper care and skill. There is no question of warranty, undertaking or profession of skill. The standard of care and skill to satisfy the duty in tort in that of the ordinary  competent medical practitioner exercising the ordinary degree of professional skill. A defendant charged with negligence can clear himself if he shows that he acted in accordance with general and approved practice. It is not required in discharge of his duty of care that he should use the highest degree of skill, since they may never be acquired. Even deviation from normal, professional practice is not necessarily evidence of negligence. Tylor’s Principles and Practice of Medical  Jurisprudence [12th edn.,Vol.(1). At p 55 ]states:

“Doctors must be profoundly indebted to Lord justice Denning for his summing-up in the case of Hatcher v. Black, [(1954)The Times, June 29th & 30th,July  1st and 2nd ]. The details of the negligence alleged are of no importance to the principles involved, but the generalization made in the judge’s summing up speech was vital to a fair and just appraisal of doctor’s responsibilities. He said, in a hospital, when a person was ill and came in for treatment, no matter what care was used; there was always a risk and it would be wrong and bad law to say that simply because a mishap occurred the hospital doctors were liable… The jury must not, therefore, find him negligent simply because of risks inherent in an operation that actually took place, or because in a matter of opinion he made an error of judgement. They should find him guilty when he had fallen short of the standard of reasonable medical care, when he was deserving of censure.” It is also necessary to bear in mind the following warning given to courts by Goddard L.J. as he then was, in Mohan v. Osborne, (1939) 2 K B. 14, p 47]: “ I would not for a moment attempt  to define in vacuum the extent of a surgeon’s duty in an operation beyond saying that he must use reasonable care, nor can I imagine anything more disastrous to the community than to leave it to a jury or to a judge, if sitting alone to lay down what it is proper to do in any particular case without the guidance of witnesses who are qualified to speak on the subject.

” TO  DEMAND  MORE  FROM  DOCTORS Moreover, it is a principle of civil liability, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule. According to the law of negligence, the test whether the consequences were reasonably foreseeable is a criterion alike of culpability and of compensation, as held by the Privy Council in Overseas Tankship etc. v. Morts Dock etc. [(1961)1 All ER 404] In Lord Nathan’s Medical Negligence [1957 edn.] the following observation of Lord President Clyde in Hunter v Hanley [(1955)SLT 213] is relied upon. “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 a acting with reasonable care.  

NO  WARRANTY “ The medical man must therefore exercise reasonable skill and care, measured by the standard of what is reasonably to be expected from the ordinary competent practitioner of his class. If he does so he will have discharged his duty and cannot be held answerable even if the treatment has untoward results. For the medical man is not an insurer; he does not warrant that his treatment will succeed or that he will perform a cure. Naturally he will not liable if, by reason of some peculiarity in the frame of constitution neither of a patient which was nor reasonably to be anticipated a treatment in ordinary circumstances would be sound has unforeseen results. But he will not even be liable for every slip of accident.”  

STANDARD  CARE  NO  INSURANCE  TO  SLIPS “ The standard of care, which the law requires, is not insurance against accident slips. It is such a degree of care as a normally skillful member of the profession may reasonably be expected to exercise in the actual circumstances of the case in  question. It is not every slip or mistake which imports negligence.” ” Thus in order to decide whether negligence is established in any particular case the act or omission, of course of conduct complained, of must be judged not by ideal standards nor in the abstract, but against the background of the circumstances in which the treatment in question was given. This is not to say that the standard of skill or care required varies with the circumstances of each case; the standard is always the same, namely, the conduct of ordinary competent and careful practitioner, but the degree of care required to comply with that standard is conditioned by the actual  circumstances of the case. It is the degree of care, which varies not the standard. Lord Nathan has observed; “ The Burden of proving negligence upon the person who asserts it. In medical negligence cases, therefore it is for the patient to establish his claim against the medical man and not for the medical man to prove that he acted with sufficient care and skill”. “It is by means of evidence of course, that the patient will seek to, and indeed must, establish his claim, but the evidence he adduces may take several different forms. The most important form, ordinarily, is oral evidence, which may consist both of sworn testimony of the patient himself and other persons upon matters of fact such as what was done and what was said upon the relevant occasions, and of the sworn testimony of expects upon matters of opinion, such as the correct mode of treatment for a specific condition. But the patient is not confined to oral evidence he may also rely upon documentary evidence in order to establish the facts upon which he bases his claim of negligence.” In an unreported judgement in Amlia Flounders v Dr. Clement Perreira [1947 O.C.J. App No. 27 of 1974] Chagla Ag. C.J. and Bhagwati J. observed: “ The law on the subject is really not in dispute. The plaintiff has to establish first that there had been a want of competent care and skill on the part of the defendant to such an extent as to lead to a bad result. The plaintiff had also to establish the necessary connection between the negligence of the defendant and the ultimate death of the plaintiff’s son.” In that case, large number of experts were examined in regard to the treatment given by the doctor and it was held that the doctor was not negligent and the appeal court confirmed the original judgement [ in the case by Tendolkar J. dated March 5, 1947, which is also an unreported judgement] but in which Tendolkar J. observed.: Actions for negligence in India are to be determined according to the principles of English Common law and those principles have been set out in an action for negligence against a medical man by Erle C.J. in Rich v Pierpont [(1862) 3 F& F 36] in these words: “ It was enough to make the defendant liable that same medical man, of for greater experience or ability might have used a greater degree of skill, nor that even he might possible have used some greater degree of care. The question was whether there had been a want of competent care and skill to such an extent as to lead to the bad result considering how much the treatment of a case dependent upon its varying phases, which changed as quickly as the shifting hues of the heavens, it was hard for one medical man to come forward and condemn the treatment of a brother in the profession, and say that he would have done this and that, when probably, had he been in a position to judge the case from the first he would have done no better.” 

STANDARD  CARE  DOES  NOT  MEAN  CARE  BY  GIFTED  DOCTORS ‘It is clear, therefore, that the degree of competent care and skill by which the defendant is to be judged is such as may be reasonably expected from an average person in his profession and not from any person specially gifted or qualified. The defendant in this case is a general practitioner and is to be judged by the average standard of a general practitioner and not even  of a consultant, much less of a surgeon, who cures diseases by operation and not by medical treatment. Moreover, in order to succeed, it is not sufficient for the plaintiff to establish the negligence of the defendant; it is necessary further to establish the necessary connection between the negligence and ultimate death.”

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PUBLIC HOSPITALS NEGLIGENCE

The present arrangements, in the public sector, for curing the sick and injured, suffer from a multitude of weaknesses viz. Inadequate number of hospitals and dispensaries, the rude, callous and indifferent behaviour of the doctors coupled with the inaccessibility of senior doctors, their carelessness, poor hygienic and sanitary  conditions, and above all. Environment compelling the patient to switch over to private clinics and nursing homes if only one is to survive. Attempts, though made, to solve these problems are far from satisfactory. In the case of Hanuman Prasad  Darban v. Dr. C.S. Sharma, S.M.S. Hospital, Jaipur [Complaint case No. 3/1989 before the Consumer Disputes Redress Commission, Rajasthan, Jaipur], the Commission held that if a person gets the service rendered by the doctors in the hospital run by the State Govt. such services are free services and no consideration whatsoever is paid by that person. ” Service ” as defined in sec. 2 (1) (0) does not include any service free of charge or under any contract of personal service. It is true that the doctors are paid salary from the public exchequer and the Govt. employs them on payment of salary and the Govt. while running the hospitals gives free medical service to its citizens and for availing of their services it pays the salary to the doctor, but any citizen who is entitled to free medical services from the hospitals run by the Govt. cannot be said to have hired the services for consideration. So it could not be said that he is a “consumer” within the meaning of section2(1) (d)
Public hospital who are having paid beds and are charging meagre fees are now under consumer Protection  act 1986. same is the case  with charitable and semi charitable hospital.

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