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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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Medico Legal

   

-:Negligence And Proof :-

Negligenceof Doctors: Negligence of doctor isdefined as breach of responsibility ordutyowed to his patient and whichresults in actual damage to his patient.

RASHNESS:An act of omission or commission when areasonable person ought to do or abstainrespectively and result in damage amountsto rashness.

MALPRACTIC: Any breach of morals,ethics or duty in performing professionalwork amounts to malpractice. Malpracticeis genus and negligence and rashness isspecies of it.

MISJUDGMENT: Error of judgment at a given moment couldmislead a person to result in damage to aperson. Misjudgment does not amount tomalpractice or negligence or rashness.There is very thin line dividingmisjudgment and malpractice. This is theinherent risk involved in taking plea ofmisjudgment by doctors.

MISADVENTUREAND EMERGENCY SITUATION:Inunusual situation and emergency ingoodfaith a person may resort tomisadventure to save life of a person whootherwise is going to be dead due todisease or accident. This amounts toexperimentation in extreme situation.Again there is thin line dividingmisadventure malpractice so one has to becareful in taking plea of misadventure.

ONUSOF PROOF OF NEGLIGENCE:(1)Onus of proving that doctor is negligentis on the person who alleges negligence.(2) It is difficult to prove negligence ofdoctor.(3) It is almost impossible toprove negligence of doctor if he has takenfollowing precaution:[a.] Doctor hasobtained inform consent.[b.]If doctor has proper registrationfrom medical council.[c.]If doctor has keep proper record.[d.]If the doctor has explained to therelatives and patient all acts aboutdisease investigation,procedures,treatment, surgery and outcome.[e.]  If doctor has notanything secretly or in closedplaces like O.T., I.C.C.U(where patientsrelative’s do not have access)

CASES OF NEGLIGENCE

Caselaws which speak and differentiatenegligence from misjudgment ormisadventure are as below:

LIABILITYOF MEDICAL MEN:A personwho holds himself out ready to givemedical advice and treatmentimpliedly undertakes that he ispossessed of skill and knowledge for thepurpose. Such a person when consulted by apatient owes him certain duties, Viz;A duty of care in deciding whetherto undertake the case, a duty, of care inthe administration of that treatment. Abreach of any of those duties gives rightsof action for negligence to the patient.The practitioner must bringto his task a reasonable degree ofskill and knowledge and must exercise areasonable degree of care.

DEGREEOF SKILL:Neitherthe very highest nor a very low degree ofcare and competence judged in the light ofthe particular circumstance of each caseis what the law requires. ( Halsbury’slaws of the England, 3rd Ed.Vol 26 p 17 )

MISADVENTURE:The doctor no doubt hasa discretion in choosing treatment whichhe proposes to give to the patient andsuch discretion is relatively ampler incases of emergency [Laxman BalkrishnanJoshi v. TimbakBapu Godbole 1968 ACJ 183 at p 187(SC). Lord Denning said in Roe v. Ministerof Health (1954) 2 QB 66]:

” Onefinal word. These two men have sufferedsuch terrible consequences that there is anatural feeling that they should becompensated. But we should be doing adisservice to thecommunity at large if we are toimpose liability on hospitals and doctorsfor everything that happens to go wrong.Doctors would be led to think more oftheir own safety than of the good of theirpatients. Initiative would be stifled andconfidence shaken. A proper sense ofproportion requires us to have regard tothe conditions in which hospitals anddoctors have to work. We must insist ondue care for the patient at every point,but we must not condemn as negligence thatwhich is only a misadventure”

ERROROF JUDGEMENT: In Hatcher v. Black[(1954) Times, 2nd July]Lord Denning explained the law on thesubject of negligence against doctors andhospitals in the following words:“Before I consider the individualfacts, I ought to explain to you the lawon this matter of negligence againstdoctors and hospitals. Mr. Marvan Everttsought to liken the case against ahospital to a motor car accident or to anaccident in a factory. That is the wrongapproach. In the case of accident on theroad, there ought not to be any accidentif everyone used proper care; and the sameapplies in a factory; but in a hospitalwhen a person who is ill goes in fortreatment, there is always some risk, no‘matter what care is used. Everysurgical operation involves risks. Itwould be wrong , and indeed bad law, tosay that simply because of misadventure ormishap occurred, the hospital and thedoctors are thereby liable. It would bedisastrous to the community if it were so.It would mean that a doctor examining apatient or a surgeon operating at a tableinstead of getting on with his work, wouldbe forever looking over shoulder to see ifsomeone was coming up with a dagger. Hisprofessional reputation is as dear to himas his body, perhaps more so, and anaction for negligence can wound hisreputation as severely as a dagger can hisbody, you must not, therefore, find himnegligent simply because something happensto go wrong; if, for instance, one of therisks inherent in an operation actuallytakes place or some complicationensues which lessens or takes away thebenefits that were hoped for, or if in amatter of opinion he makes an error ofjudgement. You should only find, himguilty of negligence when he falls shortof the standard of a reasonably skillfulmedical man, in short, when he isdeserving of censure for negligence in amedical man is deserving of censure”

RISKAND EXPERIENCE:Equallypertinent are the observations of LordDenning in Roe’s case [(1954) 2 QB66] to the following effect: ” Itis so easy to be wise after the event andto condemn as negligence that which wasonly a misadventure. We ought always to beon our guard against it, especially incases against hospitals and doctors.Medical science has conferred greatbenefit on mankind, but these benefits areattended by considerable risk. Everysurgical operation is attended by risk. Wecannot take the benefit without taking therisk. Every advance in technique is alsoattended by risk. Doctors like the rest ofus have to learn by experience; andexperience often teaches in a hard way.Some thing goes wrong and shows up aweakness and then it is put right. That isjust what happens here. The doctor did notknow that there would be undetectablecracks in ampules, but it was notnegligent of him not to know it at thattime. We must not look at the 1947accident with 1954 spectacles”.

WRONGDIAGNOSIS VERSUS MISTAKEN DIAGNOSIS:The diagnosis of analiment is normally the first matter withwhich the medical man is concerned. Therecan be no doubt that he may find himselfheld liable in an action for negligence ifhe makes a wrong diagnosis and therebycauses injury to the patient. But it mustbe remembered that a mistaken diagnosis isnot necessarily a negligent diagnosis.” No human being is infallible and inthe present state of science even the mosteminent specialist may be at fault indetecting the true nature of a diseasedcondition. A practitioner can only be heldliable in this respect it his diagnosis isso palpably wrong as to prove negligence,that is to say if his mistake is of suchnature as to imply an absence ofreasonable skill and care on his part,regard being had to the ordinary level ofskill 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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GREATERBURDEN OF PROOF

LordDenning M.R. in Hucks v. Cole [(1968)118 New L J 469] said, ” A charge ofprofessional negligence against a medicalman was serious. It stood on a differentfooting to a charge of negligence againstthe driver of am motor car. Theconsequences were far more serious. Itaffected his professional status andreputation. The burden of proof wascorrespondingly greater. As the charge wasso grave, so should the proof be clear.With the best will in the world, thingssome times went amiss in surgicaloperationsor medical treatment. A doctor wasnot to be held negligent simply becausesomething went wrong. He was not liablefor taking one choice out of two or forfavoring one school rather than another.He was only liable when he fell below thestandard of a reasonably competentpractitioner in his field so much so thathis conduct might be deserving of censureor inexcusable” [Ram Biharilal v.Dr. J.N. Srivastava, AIR 1985 MP 150 atpp. 157-158.]

ORDINARYCARE: In this context it will be useful toextract a passage from the address givenman Mc. Nair, J. in Bolam v. FriernHospital Management Committee [(1957) 2All ER 118] While explaining the lawto jury:-

Counsel for the plaintiff put in it thisway, that in the case of a medical mannegligence means failure to act inaccordance with the standards ofreasonably competent medical man at thetime. That is a perfectly accuratestatement as long as it is remembered thatthere may be one or more perfectly properstandards; and if a medical man confirmswith one of those proper standards then heis not negligent.” MC. Nair, J in the courseof the same address made referenceto the observation of Lord Clyde inScottish case, Hunter v. Hanlay [1955SLT p 213 at p 217] ” The true test for establishingnegligence in diagnosis or treatmenton the part of a doctor is whetherhe has been proved to be guilty of suchfailure as no doctor of ordinary skillwould be guilty of acting with ordinarycare.”

DEPARTUREFROM ORTHODOX TREATMENTInClark v. Maclenna [01983) 1 All ER 416] PeterPain J. after referring to variousauthorities, stated thus: “Although in an action in negligence theonus of proof normally rested on theplaintiff, in a case where a general dutyof care arose and there was a failure totake a recognized precaution and thatfailure was followed by the very damagewhich that precaution was designed toprevent, the burden of proof lay on thedefendant to show, first , that the damagesuffered by the plaintiff did not resultfrom the breach. Accordingly a doctor oweda duty to his patient to observe theprecautions which were normal in thecourse of the treatment that he gave.Where a patient suffered damage afterthere had been a departure from theorthodox course of treatment the court hadto inquire whether the doctor had takenall proper factors into account prior totaking action in order to determinewhether that departure wasjustified.” NO CONSENT NEEDED: Anyfailure to perform an emergency operationfor want of consent amounts to negligence.[Dr. TT Thomas v. Smt Elisa, ARI 1987Ker 52 at pp 54-56; but see Usha v. Dr.G.P. Namboodiri, 1986 ACJ 141.]

FAILURETO INFORM ABOUT EVERY RISK:Doctorsowe to their patients a duty in tort aswell as in contract. It is expected ofsuch professional man that he should showa fair, reasonable and competent degree ofskill; it is not required that he shoulduse the highest degree of skill , forthere may be persons who have highereducation and greater advantages, then hehas, nor will he be held to haveguaranteed a cure. Although the standardis a high one, a medical practitionershould not be found negligent simplybecause one of the risks inherent in anoperation of that kind occurs, or becausehe has failed to warm the patient of everyrisk involved in a proposed course oftreatment [see Salmond on the Law ofTorts, 16th Edn., p 232].

NOCONTRACT NEEDED:Thecivil liability of medical men towardstheir patient is perhaps compendiouslystated in Rex v. Batemen [(1925) 94 lik791] as follows [p 794]”

” If aperson holds himself out as possessingspecial skill and knowledge and he isconsulted, as possessing such skill andknowledge, by or on behalf of patient heowes a duty to the patientto use due caution in undertakingthe treatment. If he accepts theresponsibility and undertakes thetreatment and the patient submits to hisdirection and treatment accordingly, heowes a duty to the patient to usediligence, care, knowledge, skill andcaution in administering the treatment. Nocontractual relation is necessary, nor isit necessary that the service be renderedfor reward….. The law requires a fairand reasonable standard of care andcompetence. This standard must be reachedin all the matter above mentioned. If thepatient’s death has been caused by thedefendant’s indolence or carelessness,it will not avail to show that he hadsufficient knowledge; nor will it avail toprove that he was diligent in attendance,if the patient has been killed by hisgross ignorance and unskillfulness. Asregards cases where incompetence isalleged, it is only necessary to say thatthe unqualified practitioner cannot claimto be measured by any lower standard thanthat which is applied to a qualified manand unqualified man. As regards cases ofalleged recklessness, juries are likely todistinguish between the qualified man.There can be recklessness in undertakingthe treatment and recklessness in theconduct of it. It is, no doubt,conceivable that a qualified man may beheld liable for recklessly undertaking acase which he knew, or should have known,to be beyond his powers of for making hispatient the subject of recklessexperiment. Such cases are likely to berare” [see Charlesworth onNegligence, Fifth Edn. Pp 181 and 182, par272].

DEVIATIONFROMNORMALPRACTICE:Theduty of a medical practitioner arises fromthe fact that he does something to a humanbeing which is likely to cause physicaldamage unless it is caused inspite ofexcising proper care and skill. There isno question of warranty, undertaking orprofession of skill. The standard of careand skill to satisfy the duty in tort inthat of the ordinarycompetent medical practitionerexercising the ordinary degree ofprofessional skill. A defendant chargedwith negligence can clear himself if heshows that he acted in accordance withgeneral and approved practice. It is notrequired in discharge of his duty of carethat he should use the highest degree ofskill, since they may never be acquired.Even deviation from normal, professionalpractice is not necessarily evidence ofnegligence. Tylor’sPrinciples and Practice of MedicalJurisprudence [12thedn.,Vol.(1). At p 55 ]states:

“Doctorsmust be profoundly indebted to Lordjustice Denning for his summing-up in thecase of Hatcher v. Black, [(1954)TheTimes, June 29th & 30th,July1st and 2nd]. The detailsof the negligence alleged are of noimportance to the principles involved, butthe generalization made in the judge’ssumming up speech was vital to a fair andjust appraisal of doctor’sresponsibilities. He said, in a hospital,when a person was ill and came in fortreatment, no matter what care was used;there was always a risk and it would bewrong and bad law to say that simplybecause a mishap occurred the hospitaldoctors were liable… The jury must not,therefore, find him negligent simplybecause of risks inherent in an operationthat actually took place, or because in amatter of opinion he made an error ofjudgement. They should find him guiltywhen he had fallen short of the standardof reasonable medical care, when he wasdeserving of censure.” Itis also necessary to bear in mind thefollowing warning given to courts byGoddard L.J. as he then was, in Mohan v.Osborne, (1939) 2 K B. 14, p 47]: “I would not for a moment attemptto define in vacuum the extent of asurgeon’s duty in an operation beyondsaying that he must use reasonable care,nor can I imagine anything more disastrousto the community than to leave it to ajury or to a judge, if sitting alone tolay down what it is proper to do in anyparticular case without the guidance ofwitnesses who are qualified to speak onthe subject.” TODEMANDMOREFROMDOCTORS Moreover,it is a principle of civil liability, thata man must be considered to be responsiblefor the probable consequences of his act.To demand more of him is too harsh a rule.According to the law of negligence, thetest whether the consequences werereasonably foreseeable is a criterionalike of culpability and of compensation,as held by the Privy Council in OverseasTankship etc. v. Morts Dock etc. [(1961)1All ER 404] InLord Nathan’s Medical Negligence [1957edn.] the following observation of LordPresident Clyde in Hunter v Hanley[(1955)SLT 213] is relied upon. “Thetrue test for establishing negligence indiagnosis or treatment on the part of adoctor is whether he has been proved to beguilty of such failure as no doctor ofordinaryskill would be guilty of if aacting with reasonable care.NOWARRANTY “The medical man must therefore exercisereasonable skill and care, measured by thestandard of what is reasonably to beexpected from the ordinary competentpractitioner of his class. If he does sohe will have discharged his duty andcannot be held answerable even if thetreatment has untoward results. For themedical man is not an insurer; he does notwarrant that his treatment will succeed orthat he will perform a cure. Naturally hewill not liable if, by reason of somepeculiarity in the frame of constitutionneither of a patient which was norreasonably to be anticipated a treatmentin ordinary circumstances would be soundhas unforeseen results. But he will noteven be liable for every slip ofaccident.”STANDARDCARENOINSURANCETOSLIPS “The standard of care, which the lawrequires, is not insurance againstaccident slips. It is such a degree ofcare as a normally skillful member of theprofession may reasonably be expected toexercise in the actual circumstances ofthe case inquestion. It is not every slip ormistake which imports negligence.” ” Thus in order todecide whether negligence is establishedin any particular case the act or omission,of course of conduct complained, of mustbe judged not by ideal standards nor in theabstract, but against the background ofthe circumstances in which the treatmentin question was given. This is not to saythat the standard of skill or carerequired varies with the circumstances ofeach case; the standard is always thesame, namely, the conduct of ordinarycompetent and careful practitioner, butthe degree of care required to comply withthat standard is conditioned by the actualcircumstances of the case. It isthe degree of care, which varies not thestandard. Lord Nathan has observed; “The Burden of proving negligence upon theperson who asserts it. In medicalnegligence cases, therefore it is for thepatient to establish his claim against themedical man and not for the medical man toprove that he acted with sufficient careand skill”. “Itis by means of evidence of course, thatthe patient will seek to, and indeed must,establish his claim, but the evidence headduces may take several different forms.The most important form, ordinarily, isoral evidence, which may consist both ofsworn testimony of the patient himself andother persons upon matters of fact such aswhat was done and what was said upon therelevant occasions, and of the sworntestimony of expects upon matters ofopinion, such as the correct mode oftreatment for a specific condition. Butthe patient is not confined to oralevidence he may also rely upon documentaryevidence in order to establish the factsupon which he bases his claim ofnegligence.” Inan unreported judgement in Amlia Floundersv Dr. Clement Perreira [1947 O.C.J. AppNo. 27 of 1974] Chagla Ag. C.J. andBhagwati J. observed: “The law on the subject is really not indispute. The plaintiff has to establishfirst that there had been a want ofcompetent care and skill on the part ofthe defendant to such an extent as to leadto a bad result. The plaintiff had also toestablish the necessary connection betweenthe negligence of the defendant and theultimate death of the plaintiff’sson.” Inthat case, large number of experts wereexamined in regard to the treatment givenby the doctor and it was held that thedoctor was not negligent and the appealcourt confirmed the original judgement [in the case by Tendolkar J. dated March 5,1947, which is also an unreportedjudgement] but in which Tendolkar J.observed.: Actionsfor negligence in India are to bedetermined according to the principles ofEnglish Common law and those principleshave been set out in an action fornegligence against a medical man by ErleC.J. in Rich v Pierpont [(1862) 3 F& F36] in these words: “It was enough to make the defendant liablethat same medical man, of for greaterexperience or ability might have used agreater degree of skill, nor that even hemight possible have used some greaterdegree of care. The question was whetherthere had been a want of competent careand skill to such an extent as to lead tothe bad result considering how much thetreatment of a case dependent upon itsvarying phases, which changed as quicklyas the shifting hues of the heavens, itwas hard for one medical man to comeforward and condemn the treatment of abrother in the profession, and say that hewould have done this and that, whenprobably, had he been in a position tojudge the case from the first he wouldhave done no better.”STANDARDCAREDOESNOTMEANCAREBYGIFTEDDOCTORS ‘It is clear, therefore,that the degree of competent care andskill by which the defendant is to bejudged is such as may be reasonablyexpected from an average person in hisprofession and not from any personspecially gifted or qualified. Thedefendant in this case is a generalpractitioner and is to be judged by theaverage standard of a general practitionerand not evenof a consultant, much less of asurgeon, who cures diseases by operationand not by medical treatment. Moreover, inorder to succeed, it is not sufficient forthe plaintiff to establish the negligenceof the defendant; it is necessary furtherto establish the necessary connectionbetween the negligence and ultimatedeath.”

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 PUBLIC HOSPITALSNEGLIGENCE

Thepresent arrangements, in the publicsector, for curing the sick and injured,suffer from a multitude of weaknesses viz.Inadequate number of hospitals anddispensaries, the rude, callous andindifferent behaviour of the doctorscoupled with the inaccessibility of seniordoctors, their carelessness, poor hygienicand sanitaryconditions, and above all.Environment compelling the patient toswitch over to private clinics and nursinghomes if only one is to survive. Attempts,though made, to solve these problems arefar from satisfactory. Inthe case of Hanuman PrasadDarban v. Dr. C.S. Sharma, S.M.S.Hospital, Jaipur [Complaint case No.3/1989 before the Consumer DisputesRedress Commission, Rajasthan, Jaipur],the Commission held that if a person getsthe service rendered by the doctors in thehospital run by the State Govt. suchservices are free services and noconsideration whatsoever is paid by thatperson. ” Service ” as definedin sec. 2 (1) (0) does not include anyservice free of charge or under anycontract of personal service. It is truethat the doctors are paid salary from thepublic exchequer and the Govt. employsthem on payment of salary and the Govt.while running the hospitals gives freemedical service to its citizens and foravailing of their services it pays thesalary to the doctor, but any citizen whois entitled to free medical services fromthe hospitals run by the Govt. cannot besaid to have hired the services forconsideration. So it could not be saidthat he is a “consumer” withinthe meaning of section2(1) (d)Public hospital who are having paid bedsand are charging meagre fees are now underconsumer Protection  act 1986. sameis the case  with charitable and semicharitable hospital.

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