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)
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. ( Halsburyslaws 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, nomatter 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 Roes 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]
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 thepatients death has been caused by thedefendants 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. TylorsPrinciples 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 judgessumming up speech was vital to a fair andjust appraisal of doctorsresponsibilities. 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 asurgeons 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 Nathans 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 plaintiffsson.” 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.”
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.