This article is written by Varchaswa Dubey, from JECRC University, Jaipur. This article reflects the exhaustive work concerning medical negligence and its in-depth study. The article also aims at providing an understanding of medical negligence. 

Introduction 

The concept of medical negligence refers to the malpractice of a medical professional who fails to meet the standards of his/her profession which results in the death of a patient who was expecting the medical professional to save her/her life. Medical negligence is the most shameful act a medical professional can conduct because this negligence most of the time results in the death of the patient. 

According to Black’s Law dictionary, negligence refers to the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do or the doing of something which a reasonable and prudent man would not do.

Medical negligence in legal terms refers to the breach of a duty of care, which results in damage. The damages may be in monetary terms, health terms, derogating the condition of the patient, causing trauma to the patient, leaving the patient in irredeemable condition for the rest of his/her life, etc. 

India has inherited the principles of English law and most of the contemporary laws prevailing in India are the direct consequence of the inheritance of the laws from English law. One such principle is the case of Bolam v. Friern Hospital Management Committee (1957). However, the position was amended in the year 2001 when such a test was abandoned by English courts which made the requirements of medical negligence stricter; however, the Indian courts continued to follow the principles laid down in Bolam’s case. 

Origins of the medical evaluation 

There is no rebuttal considering the development of the medical fraternity over the years. From Ayurvedic medicine, which India has been practising for more than 5000 years, to the german originated Allopathic medicines, around the year 1800 and ever since. 

During the ancient times, in Hammurabi’s Code, carelessness and neglect were severely punished, as in the case of the unskillful physician, if it led to the loss of life or limb, his hands were cut off and if such death was of a slave, then the person who conducted the operation must give another slave as a compensation. 

In Manusmriti, references of medical negligence can be found, and such negligence was considered more of a crime than a tort. The Kautilya’s Arthashastra also considered that if the death of a patient under treatment is due to carelessness in the treatment, the physician shall be punished. 

During the 19th Century, England witnessed the evolution of the medical fraternity. However, the medical practitioners were initially bound by the rules of the East India Company, but later on, this concept was also practised in India and this can be considered as the origins of contemporary times medical practice in India. The initial bodies governing the medical fraternity were the Medical Council of India by virtue of the Indian Medical Council Act, 1933, later the Nursing Council of India was established in 1947. 

Bolam’s test vis-a-vis Bolitho’s test 

Bolam’s test 

Bolam’s test evolved in the case of Bolam v. Friern Hospital Management Committee, 1957, where the plaintiff, Mr. John Hector Bolam, admitted himself to the Friern hospital to undergo depression treatment. The doctor who was employed to cure the plaintiff failed to give him muscle-relaxant drugs as a result of which the plaintiff suffered a fracture of both his hips and the plaintiff sued the hospital claiming the doctor was negligent in fulfilling his duties. The plaintiff further argued that if he knew the risks involved, he wouldn’t have undergone therapy and that medical professions were negligent in fulfilling their duties. 

The court, in this case, did not find the defendant liable for their acts. The court held that it was not a common practice for the doctors to convey the risks involved in the procedure. Furthermore, the court while relying on the testimony of experts who held different opinions for the use of muscle relaxant and most of the experts were of the view that they wouldn’t have taken such muscle relaxant and therefore the court was of the view that doctors and nurses had not acted negligently in their treatment of Mr. Bolam. 

The test to determine the negligence can be understood by the words of the judgment i.e. “A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a man is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.” 

It was further held that “where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man may not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. A doctor is not negligent if he is acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.”

Bolitho’s test 

The Bolitho test evolved from the case of Bolitho v. City and Hackney Health Authority (1997), which challenged the approach of medical negligence taken in the case of Bolam. The case briefly unfolds as, in 1984, a two-year-old child named Patrick Nigel Bolitho, was admitted to the St. Bartholomew’s Hospital. The child was suffering from croup. Initially discharged after senior doctors saw his condition, the child derogated the following day, and the doctors, while admitting this, admitted the child and appointed a nurse to take care of the child. But the condition of the child continued to deteriorate and the child eventually succumbed but was revived after 10 minutes. Such events caused brain damage to the child and he later died and his parents filed a case of negligence of conduct at the hospital. 

The House of Lords, in this case, found the presiding medical officer guilty of negligent conduct. The court, while further determining if the child would have died if the doctor would have attended him, took the advice of eight experts, while five of them were of the opinion that they would have intubated the child, the other three were of the opinion that they wouldn’t have done such acts, and therefore the court did not find the accused senior doctor guilty of negligence. The court further held – “The use of adjectives ‘responsible, reasonable and respectable’, all show that the court has to be satisfied that the exponents of the body of medical opinion relied upon can demonstrate that such opinion has a logical basis. In particular, in cases involving as they so often do, the weighing of risks against benefits, 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 had directed their minds to the question of comparative risks and benefits and had reached a defensible conclusion on the matter”.

What amounts to negligence 

The court, in Bolam’s case, held – “If an error would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence”.

The Supreme Court of India, in the case of Kusum Sharma & Ors v. Batra Hospital & Medical Research (2010), held that “Negligence is the breach of a duty exercised by 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”.

To establish negligence against a doctor, the essentials are: 

• Duty of Care: If the doctor owed a duty of care towards the patient or person who has suffered mental and physical injury, then the doctor is guilty of medical negligence and shall be expelled to practice further.
• Breach of Duty: The second factor is the establishment of the fact that despite the doctor owing a duty of care towards the patient, the former failed to fulfil such duty and has breached in fulfilling his duty towards his/her profession.
• Causing of injury: It must be established that a doctor owed a duty of care towards the patient and he/she failed in fulfilling his duty and such failure has resulted in injury or death to the patient.

It is only negligence if the aggrieved party establishes all these factors in the court of law. 

Effects of medical negligence 

Medical negligence has numerous consequences like:

• Adding of costs: Medical negligence results in additional treatment or surgeries, which not only adds to the bills of medical but also other hospital expenses like admitting expenses, more therapy sessions, etc.
• Exhausting of insurance: Medical negligence results in the plaintiff taking more insurance support which eventually exhausts all his savings and health insurance. 
• It leads to lengthy court procedures: Medical litigation is usually lengthy and time-consuming for the plaintiff as well as the respondent, which adds to the problem of the patient or his legal representatives or family members.
• Making the initial situation worse: Medical negligence makes the initial condition of the patient worse by giving more complications and injuries to the patient. 
• It results in lifelong traumas: Recovering from an injury can be easy with the assistance of good doctors and medicines; however it may take lifelong to recover from the trauma or shock, sufferings, pain, etc. caused to the patient who underwent an operation to improve his/her conditions. 
• Unnecessary medical procedures: Medical negligence also leads to other medical surgeries which are performed to undo or compensate for the medical negligence caused by the doctors.

Medical negligence in India

Death by medical negligence is primarily punished under Section 304A of Indian Penal Code, 1860, (IPC), where punishment for causing death by rash and negligent act is reserved for a term which may extend up to 2 years, or with fine, or both.

Not every act where a person goes to a medical professional to undergo a surgery or procedure, which involves rash and the negligent act falls within the ambit of Section 304 A of IPC however, it will be a criminal act if the medical professional employs gross lack on his part. 

It was held in the case of Kurban Hussein Mohammedali v. State Of Maharashtra (1964), “To impose criminal liability under Section 304A of IPC, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence.” 

In the case of V. Kishan Rao v. Nikhil Super Speciality Hospital (2010), the plaintiff, who was also an officer in the malaria department, filed a complaint against the hospital for negligent conduct in treating his wife regarding the wrong treatment of his wife. The plaintiff alleged that the hospital was negligent in treating his wife with typhoid fever instead of malaria fever due to the negligence of medications by the employees of the hospital. The plaintiff, in this case, got a compensation of 2,00,000 rupees. 

Guidelines of Supreme Court of India

The Supreme Court of India, in the case of Jacob Mathew v. State Of Punjab & Anr (2005), gave certain guidelines concerning medical negligence:

• A complaint may not be entertained unless the person giving such complaint produces prima facie evidence before the court to support his/her claim of negligence of the accused doctor.
• The appointed investigating officer must, before initiating proceedings against the accused doctor, consult with a doctor in government services who must be unbiased and impartial in giving his opinion after applying Bolam’s test to the case.
• The accused doctor shall not be arrested routinely unless such arrest is necessary for further investigation or until the investigating officer, if satisfied that the doctor would not make himself available to face the prosecution, may be arrested. 

Conclusion 

Medical negligence is the worst type of conduct by a medical professional because people usually expect such a person to save the life of others and not take or make it worse. Cases of medical negligence are witnessed every day, which causes pain, agony, and suffering to the patient, and to reduce such misconduct, the government of India and its medical fraternity must improve the conditions of its medical practitioners by improving the education quality and emphasizing professional conduct education. 

The concept of medical negligence is well established in India however the Indian judiciary still follows Bolam’s test which is outdated and vague and therefore new methods to determine medical negligence must be adopted by the Indian judiciary. 

To deliver justice in cases of medical negligence, the Indian judiciary must adopt new approaches so that at least the sufferings of a person in courts can be prevented. The court must award heavy punishments for those found guilty of medical negligence and also impose heavy fines on hospitals that have employed such negligent professionals. 

References 

1. http://ijme.in/wp-content/uploads/2016/11/1444-5.pdf 
2. http://lib.unipune.ac.in:8080/xmlui/bitstream/handle/123456789/9763/08_Chapter%202.pdf?sequence=8&isAllowed=y 
3. http://www.smj.org.sg/sites/default/files/4301/4301l1.pdf 
4. https://www.nature.com/articles/4800441.pdf?origin=ppub 
5. https://lawtimesjournal.in/case-of-medical-negligence-how-the-judiciary-can-punish-a-lifesaver/ 

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