This article is written by Saloni Jain, a final year student of the National Law University Delhi. She has a keen interest in academic writing and has previously published in international journals like the ‘International Journal of Human Rights and Constitutional Studies’ and the ‘American Bar Association- India Law News’.

This note sets forth a) the test for determining medical negligence in India b) the test for determining medical negligence in the UK, c) the maximum quantum of damages that have been awarded in medical negligence cases in India, d) whether or not punitive damages are awarded by Indian courts in such cases, and e) the law pertaining to vicarious liability

Introduction

It is a settled position of law that medical services (other than those offered free to all patients of the hospital) fall under the ambit of “services” under Section 2(1) (o) of the Consumer Protection Act, 1986 (hereinafter referred to as the “Act”). A suit can be filed for deficiency in services under the Act. Deficiency in service means only negligence in a medical negligence case and it would be determined under the Act by applying the same test as is applied in an action for damages for negligence in a civil court.[1]

This remedy is not barred due to the existence of alternative remedies. There are four alternative remedies, open to the consumer whose life or property is damaged by a professional person while rendering professional service namely a civil remedy for breach of contract, a tort claim for negligence, disciplinary remedy under the disciplinary tribunal of the profession and institution of a prosecution u/s 304A, 336, 337 and 338. [2]

1. Doctor’s Liability: Standard of Care

Negligence can either be criminal or civil. For negligence to amount to an offence, a) the element of mens rea must be shown to exist and b) the degree of negligence should be gross or of a very high degree.[3] Criminal negligence is out of the scope of this note and as negligence under the Act is determined using the same test as is applied in an action for damages for negligence in a civil court, the same will be discussed hereon.

Tort of Negligence

Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.[4] Actionable negligence consists of the following three ingredients, a) duty of care b) breach of the said duty and c) consequential damage. Duty of care and causation are outside the ambit of this note.

Breach of Duty or Standard of Care in Case of Professionals

In case of professionals, the test as to whether there has been a breach of duty or not is not the test of the man on the top of a Clapham Omnibus. A surgeon does not undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill; but he undertakes to bring a fair, reasonable, and competent degree of skill; and in an action against him by a patient, the question, therefore, is as to what the legal standard of care is in the case of medical negligence.

Position in the UK

The UK currently is bound by the Bolam’s test, which was provided a ‘gloss’ in 1997, by an obiter in the Bolitho case (ratio of Bolitho concerned causation and not the standard of care). The way the Bolam’s test is interpreted is hence changing, ever since, with the court taking a more interventionist stance.[5]

According to the Bolam’s test, a doctor, who acts in accordance with a practice accepted as proper by a responsible body of medical men, is not negligent merely because there is a body of opinion that takes a contrary view. This Bolam principle has been accepted in English law as applying to treatment and diagnosis as well as ethical realms like disclosure (however, now the doctrine of consent has developed in the UK).[6]The test, however, had been perceived as being too high a burden for claimants, too deferential to doctors and lacking in external objectivity, resulting in the Bolitho standards coming up. In fact, due to heavy criticism, countries like Australia[7] rejected the Bolam’s test altogether.

Currently, as a result of the Bolitho case, a two-step procedure came to be recognized in English law as being necessary to determine the question of alleged medical breach[8]:

• whether the doctor acted in accordance with a practice accepted as proper for an ordinarily competent doctor by a responsible body of medical opinion;
• if “yes”, whether the practice survived Bolitho judicial scrutiny as being “responsible” or “logical”.[9]

That two-step analysis was explicitly confirmed as being the appropriate one, for example, in French v. Thames Valley Strategic H.A.[10] and has been described in other English medical cases, too, as “uncontroversial”[11] and as the “correct approach”.[12]

English courts, over the past decade, have been prepared to reject peer medical opinion (Bolam’s evidence), while deciding which evidence to pick as “logical” and “rational” in certain scenarios. These scenarios include situations where the expert testimony is a) internal inconsistent or b) hasn’t weighed the comparative risks/benefits of that medical practice as opposed to other courses of conduct or c) hasn’t taken account of a clear and simple precaution which was not followed but which, more probably than not, would have avoided the adverse outcome or d) hasn’t taken into account public/community expectations of acceptable medical practice.

Position in India

In 2001, the Supreme Court[13]said that the legal standard of care required is the same as the Bolam’s test, however, later in the judgment, the judges referred to the Bolitho test and held that it has been demonstrated by the appellant that “a doctor will be liable for negligence in respect of diagnosis and treatment in spite of a body of professional opinion approving his conduct where it has not been established to the courts satisfaction that such opinion relied on is reasonable or responsible. If it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the court would be entitled to hold that the body of opinion is not reasonable or responsible.”

The Court did not reject the Bolitho gloss in this case. The Court held that the Bolitho test was not helpful to the appellants because the course of action followed by the doctor was found to be reasonable. It is interesting to note is that multiple cases have quoted the Vinitha Ashok case to cite how the Bolam’s test plainly is applicable in India[14], while some quote the above mentioned paragraph in passing.

Further, in a particular 2014 NCDRC decision[15], the commission held that “expert witnesses should be unbiased conveyers of information. The pivotal factor in the medical negligence is the integrity of the expert witness testimony. It should be reliable, objective, and accurate and provide a truthful analysis of the standard of care. Regrettably, not all medical experts testify within these boundaries. Therefore, we don’t accept the expert report issued by Dr. Koushal Kishore.”This decision seems to be tilting towards accepting the Bolitho gloss by allowing court intervention to decide on which expert testimony should be accepted.

However, the more consistent view seems to be that the Bolam’s test (minus the Bolitho gloss) is applicable in India.[16]In the Jacob Matthew’s case, the SC said, “the test for determining medical negligence as laid down in Bolam’s case holds good in its applicability in India” and there was no mention of any logical analysis required to be done by the court to decide whether to rely on the expert testimony or not.[17]

The Supreme Court in 2010[18] refused to depart from the Bolam’s test in cases of medical negligence. It acknowledged the limits and criticism of the test, but added that in view of the Jacob Matthew’s case[19] (higher bench of 3 judges), it has to abide by the test. The Court, however, commented that time has come for the Supreme Court to reconsider the parameters set down in Bolam test especially in view of Article 21 of our Constitution.

Further, a doctor has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases in cases of emergency.[20]

In 2010, the SC[21] assimilated some basic principles dealing with the cases of medical negligence in India, as follows:

• The medical professional is expected must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care.
• A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
• In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
• Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
• Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
• It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

2. Damages given by Indian Courts in Cases of Medical Negligence

Consumer Courts have the power to grant punitive damages under the Consumer Protection Act.[22]In fact, the Supreme Court[23]laid down that “while quantifying damages, consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded… which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider.”However, the Indian Courts do not seem to be granting punitive damages in cases of medical negligence.

In the Kunal Saha case[24], the claimant sought a revised quantum of claim under separate headings of pecuniary, non-pecuniary, punitive and special damages.[25]He placed reliance upon US Court decisions awarding punitive damages in cases of medical negligence.[26]However, while his arguments were heard at length, while awarding the damages, the court does not delve into the question of punitive damages. While awarding the damages under the heads of, loss of income of the deceased; for medical treatment in Kolkata and Mumbai; Travel and Hotel expenses at Mumbai; Loss of consortium; pain and suffering; and cost of litigation, the Court expresses its discomfort at the number of medical negligence cases coming up and comments that they “hope and trust that this decision acts as a deterrent and a reminder to those doctors, Hospitals, the Nursing Homes and other connected establishments who do not take their responsibility seriously,”[27]hinting towards a potential change in practice of the courts.

The highest award in the case of medical negligence so far has been in the above mentioned case. In this case, a total amount of Rs. 6,08,00,550/- was awarded, by partly modifying the award granted by the National Commission with 6% interest per annum from the date of application till the date of payment, amounting to approximately INR 11 crores. The court revised certain amounts paid under different heads in this case, as those amounts were fixed years ago. Further the court did not use the multiplier method and computed damages according to the standard of living in the US (deceased was living in the US with her husband).

• Vicarious Liability

Hospital’s Liability

A hospital can be liable either directly or vicariously. Direct liability would include situations such as administrative deficiencies[28]or a failure to provide competent medical staff.[29]

As for vicarious liability of hospitals, the ordinary principles of agency apply to companies which are consequently liable for the negligence of their servants, and for torts committed by them in the course of their employment.[30]With the change in the legal position that the control test is not decisive in all cases and it breaks down when applied to skilled and professional work, a hospital authority has now been held liable for negligence of its professional staff and the distinction earlier drawn between professional duties and ministerial or administrative duties has been disapproved.[31] It does not matter whether they are permanent or temporary, resident or visiting, whole time or part time and the Hospital Authorities are usually held responsible for all of them for the reason even if they are not their employees, they are the agents of the hospitals to give the treatment.[32]

It is to be noted, that this vicarious liability applies only to civil actions. The offense of criminal negligence requires mens rea, and hence it is the liability of the doctor alone, and not of the hospital.[33]The offense of medical criminal negligence cannot be fastened on the company since the company can neither treat nor operate a patient of its own.[34]

As for the vicarious liability in the case of independent consultants, the hospital can’t escape liability by stating that there’s no master-servant relationship. It is no defence to say that surgeon is not a servant employed by the hospital.[35]The SC decision in Santa Garg v. Director National Heart Institute[36]is also relevant. The SC quoted with approval the following proposition from DENNING L.J.’s judgment in Cassidy’s case:[37]

“The hospital authority is liable for the negligence of professional men employed by the authority under contract for service as well as under contract of service. The authority owes a duty to give proper treatment- medical, surgical, nursing and the like- and though it may delegate the performance of that duty to those who are not its servants, it remains liable if the duty be improperly or inadequately performed by its delegates”.

Director’s Liability

Directors are personally responsible for any torts which they themselves commit or direct others to commit, although it may be for the benefit of their company.[38]As is evident from this statement, a director can’t be held liable for the tort of medical negligence done by a doctor employed by the hospital, unless he directed the doctor to commit that tort. To make a person liable for a tort like negligence, it must be shown that he was himself the wrongdoer or that he was the employer or principal of the wrongdoer in relation to the act complained of, or that the tort was committed on his instructions.

Directors and the Company are two separate legal entities, so the Director has no personal liability on behalf of the Company. However, there are certain exceptions to it. Director’s can be held directly liable in situations such as when they fail to exercise reasonable care, skill and diligence. They have a duty to do so under s166 of the Companies Act 2013. They can also be held liable in cases where the corporate veil is lifted. Other than cases of fraud and improper conduct there may be other exceptional cases in which the facts or equitable considerations justify an exemption from the strict rule in Salomon vs. Salomon and Company Ltd.[39]

In the case of Daljit Singh Gujral And Others vs. Jagjit Singh Arora and Other,[40]the directors were held directly criminally liable because the doctor who was negligent was not having State Medical Council license to practice medicine as per the Medical Council of India Act, 1961 and Medical Council of India Rules under which Medical Council of India certifies the doctors/physicians and regulate competency and professional standards. There was a clear failure on the part of the director’s to evaluate the qualification of the doctor who has been inefficient. This case however is no longer good in law due to an error on the face of record (wholly unrelated to the liability of directors).

In D Mohan and Anr v. the State of Jharkhand[41], the director was complained against under sections 304, 420 and 384 of the IPC, for being vicariously liable for the acts of the doctor. The Court held that as there is no provision for any liability by way of legal fiction of vicarious liability for the said offences, they cannot be held liable for the same. The Court also held that that the directors cannot be said to have committed an offense only because they are holders of offices. In offenses such as that under s138 of the Negotiable Instruments Act, fiction has been created imputing holding directors liable.[42] Even in such offenses, directors are vicariously liable for the offense of the company only they are in charge and responsible for the conduct of the business at the relevant time.[43]

 

[1] Indian Medical Association v. V.P. Shantha and Others 1996 AIR 550

[2] Ram Naresh Prasad Chaudhary, CONSUMER PROTECTION LAW: PROVISIONS AND PROCEDURE, Deep and Deep Publications, 2005.

[3] Jacob Mathew (2005) 6 SCC 1 (Martin D’souza did not follow this higher bench judgment and equated a criminal complaint against a doctor or hospital with a complaint against a doctor before the Consumer Forum)

[4] Bengal Nagpur Railway Company Limited v. Tara Prasad Maity, (1926) 48 CLJ 45; Blyth v. Birmingam Waterworks Co., (1856) 11 Ex 781, 784

[5] Penney, Palmer and Canon v East Kent Health Authority [2000] Lloyds Rep Med 41; Marriott v West Midlands Health Authority [1999] Lloyds Rep Med 23

[6] Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 1 All Whitehouse v Jordan (1981) 1 WLR 246 and Maynard v West Midland Regional Health Authority (1984) 1 WLR 634.

[7] Rogers v Whitaker (1992) 175 CLR 479; Naxakis v Western General Hospital and Another (1999) 162 ALR 540

[8] Mulheron, Rachael. “TRUMPING BOLAM: A CRITICAL LEGAL ANALYSIS OF BOLITHO’S “GLOSS”.” The Cambridge Law Journal 69.03 (2010): 609-638.

[9] The judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have reached a defensible conclusion on the risks and benefits of that opinion. if there were two differing bodies of opinion regarding the standard of care, it is for the court to scrutinise these and accept the one that is more plausible.

[10] [2005] EWHC 459 (Q.B.), at [9]-[10].

[11] Kingsberry v. Greater Manchester Strategic H.A. [2005] EWHC 2253, 87 B.M.L.R. 73, at [11].

[12] M v. Blackpool Victoria Hospital N.H.S. Trust [2003] EWHC 1744, at [24]; Marriott v. West Midlands Regional H.A. [1999] 1 Lloyd’s Rep. Med. 23, 35; Ball v. Wirral H.A. (2003) 73 B.M.L.R. 31, 43.

[13] Smt. Vinitha Ashok vs Lakshmi Hospital & Ors on 25 September, 2001(2 judge bench)

[14] Oriental Insurance Co. Ltd. vs Kulwinder Singh & Ors. on 29 November, 2011; Christu Jayanthi Hospital, vs Vincent Abraham, on 23 June, 2012

[15] Shrawan Kumar Jaipuriyar v Commandant, Base Hospital (MANU/CF/0854/2014) (National Consumer Disputes Redressal Commission New Delhi)

[16] Jacob Mathew v. State of Punjab(2005) 6 SCC 1; State of Haryana v. Santra, AIR 2000 SC 1888; Venkatesh Iyer v. Bombay Hospital Trust, AIR 1998 Bombay 373

[17] Para 49, Jacob Mathew v. State of Punjab(2005) 6 SCC 1; State of Punjab v. Shivram, (2005) 7 SCC 1

[18] V. Kishan Rao v. Nikhil Super Speciality Hospital and Anr. (MANU/SC/0332/2010)

[19] MANU/SC/0457/2005

[20] Dr. Laxman v. Dr. Trimbak, AIR 1969 SC 128; Poonam Verma v. Ashwin Patel 1996 AIR 2111

[21] Kusum Sharma and Ors. V. Batra Hospital and Medical Research Centre and Ors. MANU/SC/0098/2010

[22] S14(1)(d), Consumer Protection Act 1986

[23] Charan Singh vs Healing Touch Hospital & Ors on 20 September, 2000

[24] Dr . Balram Prasad vs . Dr . Kunal Saha  (MANU/SC/1098/2013)

[25] P 61, Dr . Balram Prasad vs . Dr . Kunal Saha

[26] Landgraf v. USI Film Prods. (MANU/USSC/0061/1994); 511 U.S. 244 1994

[27] P. 149, Dr . Balram Prasad vs . Dr . Kunal Saha

[28] Rajat Jain & Anr. V. M/s DR Nursing Home on 1 August, 2012

[29] Thangapandi v. Director of Primary Health Servis (2011) 256 MLJ 1329

[30] Ratanlal & Dheerajlal, Law of Torts, Lexis Nexis; 26th edition

[31] ibid

[32] Ganesh v. KS Shanmuga Sundaram and New India Assurance Co. Ltd (2010) 1 MLJ 1351

[33] Indraprashta Medical Corp. Ltd v State NCT of Delhi and Ors 130 (2006) DLT 292

[34] ibid

[35] Aparna Dutta v. Apollo Hospitals Enterprises Ltd. 2002 ACJ 954 (Mad. HC); Smt Rekha Gupta v. Bombay Hospital Trust & anr 2003 (2) CPJ 160

[36] (2004) 8 SCC 56, p.66

[37] Cassidy v. Ministry of Health, (1951) 2KB 341

[38] Ratanlal & Dheerajlal, Law of Torts, Lexis Nexis; 26th edition

[39] Union Carbide Corporation Vs. Union of India (MANU/MP/0300/1988)

[40] 2014(2)ACR2084(SC)

[41] 2012(3)JLJR 372

[42] S141, Negotiable Instruments Act 1881

[43] Harshendra Kumar D v Rebatilata Koley (2011) 3 SCC 351