(Lecture delivered at Judicial Training Institute, Lucknow to Presidents & members of consumer Forum U.P. on 26-7-2011)

Medical Negligence – Dimensions in Law* By Manish Mehrotra* (Advocate) High Court,Lucknow Consumer Protection Act, 1986 a beneficial piece of legislation came in India to sub-serve the interest of a consumer; both of goods and services. The statement and objects of the Act being to provide for better protection of the interests of Consumers. Section 2; i.e. the “definition clause” defines a “Complainant” “Consumer” and so on and so forth. Section 2 (1)(O) also defines “Service” in which interalia are included the provision / facilities in connection with banking, finance insurance, entertainment, etc. but it states that it does not include the rendering of any service “free of charge” or under a “contract of personal service”. In the year 1996, in the case of India Medical Association Vs., V.P. Shanta 1995 (6) SCC 651, the question which arose before Hon’ble Supreme Court of India – whether and, if so in what circumstances a medical practitioner can be regarded as rendering “service” under Section 2 (1) (O) of the Consumer Protection Act, 1986. It is worth a mention that there were divided opinions of various High Courts and the Hon’ble National Commission Dispute Redressal Commission on the question which came to be settled finally by the Hon’ble Supreme Court of India in this case where it was ultimately held that medical professional / hospitals / Nursing Homes, Health Centres providing consultation, diagnosis and treatment would be deemed to be rendering service to a consumer within the meaning of Section 2 (1) (O) of the Consumer Protection Act, 1986. It was also held that service rendered free of charge would stand excluded and that the relationship between patient and medical practitioner is one arising out of “contract for service” and not a “ contract of service”. There has been a march and development of law since then in the realm of medical negligence jurisprudence in various spheres pertaining to medical negligence litigation. To start with as was relied upon by the Hon’ble Supreme Court in the case of V.P. Shanta referring to the decision in the case of Laxman Bal Krishna Joshi Vs. Thrimbak Babu Godbole AIR 1969 (SC) 128. “The duties which a doctor owes to his patient are clear. A person who held himself ready to give to give medical advice and treatment impliedly undertakes that he is possessed all 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 deciding what treatment to give or a duty of care in the administration of the treatment. A breach of any of those duties gives a right of action for negligence to the patient. “A practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very law degree of care and competence judged in the law of particular circumstances of each case is what the law requires. The doctor no doubt has a discretion in choosing treatment which he propose to give the patient and such discretion is relatively ambler in cases of emergency”. This is the basic proposition of law which is still good law and the foundation on the basis of which a medical negligence case has to be decided by a consumer for a. This proposition of law has been consistently followed by Hon’ble Supreme Court in all its later pronouncements including the famous cases of Indian Medical Association 1995 (6) SCC 651; Jacob Mathew’s case 2005 (6) SCC 1; Martin F. D’souza’s case 2009 (3)SCC 1 and Batra Hospital Case 2010 (3) SCC 480 which would be discussed herein after. Jacob Mathew Vs. State of Punjab 2005 (6)SCC 1 is yet another land mark judgment on the aspect of medical negligence by the Apex Court of India. It needs to be emphasized that in this judgment a new dimension was given by the apex court and the question primarily dealt was pertaining to Section 304-A of the Indian Penal Code on account of death due to criminal medical negligence. Still however, there was a detailed pronouncement by the Hon’ble apex court pertaining to tortuous liability of doctors in cases of medical negligence. Some of the important aspects have been considered in paragraph – 18, 21, 22, 26 and 48 of the said judgment and which needs to be definitely referred to in this article. Quote 18. “In the law of negligence…………………………………………………. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. ……………………………………..It is not necessary for every professional to posses the highest level of expertise in that branch which he practices. In Michael Hyde and Associates Vs. J.D. Williams & Co. Ltd, Sedley, L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.” (Charlesworth & Percy, ibid., para 8.03). 21. “The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England (4th Edn., Vol. 30, Para 35): “35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. 22. “In the opinion of Lord Denning, as expressed in Hucks V. Cole a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.” 26. “ No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter-productive. Simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.” 48. “We sum up our conclusions as under: (1) Negligence is the breach of a duty caused 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach”, and “resulting damage”. (2) Negligence in the context of the medical professional necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or result to that practice or procedure which the accused followed. When it come to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is the time of the incident) at which it is suggested it should heave been used. (3) A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case, WLR at p. 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence., the degree of negligence should be much higher, i.e., gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa louquitur has, if at all, a limited application in trial on a charge of criminal negligence.” That then came the judgement in the case of Martin F. D’souza Vs. Mohd. Ishfaq 2009 (3) SCC 1; in this case the Hon’ble Supreme Court of India had given a new dimension while holding para 117 that whenever a consumer complaint is received against a doctor or hospital by the Consumer For a or by the criminal court then before issuing a notice to the doctor or the hospital they should first refer the matter ot a competent doctor or committee of doctors specialized in the field relating to which the medical negligence is to be attributed. However, on this aspect a later judgment of the Hon’ble Supreme Court of India in the case of V. Krishna Rao Vs. Nikhil Super specialty Hospital 2010 (5) SCC 513 has overruled the obligation of the Consumer For a to send the matter to a committee of doctors before issuance of the notice. The year 2010 saw further development and reiteration of the parameters and guidelines to be kept in mind by the Consumer For a while deciding medical negligence cases in the case of Kusum Sharma Vs. Batra Hospital 2010 (3) SCC 480. The patient developed high blood pressure in the year 1989; was obese and complained of swelling and breathlessness who was referred to Batra Hospital at the behest of Indian Oil Corporation, the employer. Amongst various tests Ultrasound and C.T. Scan it was diagnosed that there was a smooth surface of mass in the left adrenal and that surgery was imperative. The tumor concerned was also found to be malignant ;however surgery was duly performed. As alleged during the surgery the body of the pancreas was damaged and which was treated and drain was fixed to drain out the fluids. Unfortunately the patient died on account of “pylogenic meningitis” the contention of the complainant obviously being pancreatic abscess was evident as a result of pancreatic injury during the surgery.The National Commission did not find any merit in the allegations of the patient and dismissed the same primarily for want of adequate evidence. On the contrary on the basis of medical literature and evidence of eminent doctors of AIMS it was confirmed that the treating doctors had not committed any negligence. It was also found that all the standard medical protocol was duly followed and that in the circumstances no malafides can be attributed against the hospital. The court referred to in details the case sheet; medical literature; and the discharge summary. Legal principles reiterated:- the law of medical negligence has yet again been dealt quite exhaustively by the Hon’ble Supreme Court of India in this case ; both international as well as Indian; and on scrutiny of the leading cases of medical negligence both in our country and other countries especially the United Kingdom the Apex Court has reiterated that the courts are to keep in mind while deciding the cases of medical negligence ; the following principles:- “ 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. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. 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. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. 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. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. 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. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a took for pressurizing the medical professionals / hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.” ON PROCEDURE: The basic procedure as contemplated under the consumer Protection is on in the nature of “summary procedure” i.e no detailed trial has to be done as is done in a civil suit. But never the less in specific reference to the medical negligence cases this issue came up for consideration of the Hon’ble Supreme Court in the case of J.J. Merchant (Dr) v. Shrinath Chaturvedi,(2002) 6 SCC 635, at page 645 : Qoute: “19 it is true that it is the discretion of the Commission to examine the experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under Section 13(4)(iii)]. It also empowers such Forums to issue any commission for examination of any witness [under Section 13(4)(v)]. It is also to be stated that Rule 4 in Order 18 CPC is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that witnesses could be examined by the court or the Commissioner appointed by it. As stated above, the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses. The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still a party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time.” Summing up:- Thus concluding Consumer Protection Act is a beneficial piece of legislation which came in India to sub-serve the interest of a consumer; both of goods and services. Medical professional / hospitals / Nursing Homes, Health Centers providing consultation, diagnosis and treatment would be deemed to be rendering service to a consumer within the meaning of Section 2 (1) (O) of the Consumer Protection Act, 1986. A practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very law degree of care and competence judged in the law of particular circumstances of each case is what the law requires. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. Medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. No sensible professional would intentionally commit an act or Simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable. -End of Article-