Author- Rajesh Choudhary
The term medical negligence is a omnibus one, It refers to all the acts of medical professionals that fall short of reasonable skill or care, when dealing with patients.
The healthcare providers have a duty to care towards patients when treating them.
It’s crucial to remember that not every unfavourable medical outcome may be attributed to medical negligence. An unfavourable outcome can be caused by a variety of reasons, as medical therapy is not an exact science. It must be demonstrated that the medical professional violated their duty of care by not offering treatment that complied with the necessary standard in order to prove medical negligence.
Medical negligence has the capacity to devastate entire families and their ability to lead a normal life, whenever medical negligence happens the patients should take the legal remedy available and file a suit seeking compensation.
HISTORY
The concept of medical negligence has been with us for a long time now, There are references of medical negligence in Manusmriti, kotilya arthasasthra, Charaka Samhita, Sushruta Samhita etc. During Manu Smriti there were some punishments in the form of ne for the security of the common people from irresponsible and reckless Physicians.
Writings on medical responsibility can also be traced back to 2030 BC when the Code of Hammurabi provided that “If the doctor has treated a gentlemen with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with a bronze lancet, and has caused the loss of the gentleman’s eye, one shall cut off his hands.
Under Roman law, medical malpractice was a recognized wrong. Around 1200 AD, Roman law was expanded and introduced to continental Europe. After the Norman conquest of 1066, English common law was developed, and during the reign of Richard Coeur de Lion at the close of the 12th century, records were kept in the Court of Common Law and the Plea Rolls. These records provide an unbroken line of medical malpractice decisions, all the way to modern times.
The punishments of the ancient times may seem barbaric but they show that the medical practioners since those times were held responsible for the treatment they administered.
COMPONENTS OF MEDICAL NEGLIGENCE
Duty of care
The duty owed by the medical practitioner to the patient for treating patient with reasonable skill and with sufficient care.
Breach of duty of care
Where the medical practitioner failed to provide treatment with reasonable skill and care , There is a breach of duty.
Injury by breach of duty
When due to a lack in reasonable skill and care in treating the patient, The medical practioner’s treatment causes an injury or death of the patient.
Resulting Damages
Damages can be both in form of money and mental agony, Patients can claim for compensation as award from the courts.
Gross Negligence in IPC
IPC Section 304A is causing death by negligence.
[304A. Causing death by negligence.–Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.]
Generally the compensation to patients for wrong treatment by a medical practioner is covered by the concepts of torts.However, Gross negligence is defined as a high level of negligence that deviates significantly from the accepted standard of care. , It is the intentional, wanton, and reckless behaviour that endangers the life or property of another.
BOLAM’S TEST
FACTS
The defendant was the organisation that hired a physician who, before administering electroconvulsive therapy to a mentally ill patient (the claimant), had neither administered muscle relaxants nor placed the patient under restraint. The surgery resulted in injuries to the claimant. The defendant was sued by the claimant, who said the doctor was irresponsible for not providing the medication or applying restraint.
ISSUE
It is necessary to prove that the defendant violated their duty of care to the claimant in order to establish the negligence tort. The claimant must demonstrate that the defendant did not behave as a reasonable person in their position in order to establish a breach. Professionals are held to a higher standard and must behave in a way that makes sense for someone in their line of work.
In this case, the question of how to evaluate the standard of care required of a professional defendant in situations where a sizable number of professionals disagreed with a specific practice but others did not was at hand.
DECISION
According to the ruling of the High Court, the defendant was not accountable because the doctor had not violated his responsibility to the patient.
The test (sometimes called the “Bolam test”) was developed by McNair J. to ascertain the quality of care that physicians owe their patients. If a responsible body of other medical professionals with competence in that particular area accepts certain methods as appropriate, the practitioner will not be in violation of their duty of care.
The fact that other experts would disagree with the practice is irrelevant if this is established.
There was no violation because the techniques employed in this instance were accepted by a responsible segment of the medical community.
BOLITHAM’S TEST
FACTS
A young patient was admitted to the hospital with irregular respiratory patterns. Due to a low battery on her bleep, the doctor who was called to handle the situation never received the summons. That’s why the youngster passed away. The mother filed a negligence lawsuit, claiming that the infant ought to have been examined and given an intubation.
ISSUE
It is necessary to prove that the defendant violated their duty of care to the claimant in order to establish the negligence tort. According to the ruling in Bolam v. Friern Hospital, practitioners who follow protocols that are deemed appropriate by a body of accountable medical experts possessing pertinent competence will not be considered to have violated their duties. Furthermore, the claimant needs to demonstrate that, absent the violation, the issue is whether this satisfied the Bolam test, and whether causation was established.
DECISION
No responsibility.
The House of Lords ruled that a defendant cannot claim that another breach would have been committed in its place, Negating the possibility that the breach caused the harm. It was therefore required to determine if the doctor’s actions would have violated the law had they attended to the infant instead of intubating them.
The Bolam test was clarified by the House of Lords to add a requirement that the practice be supported by reasonable and convincing arguments in order for it to be deemed appropriate by a responsible group of professionals.
There was no breach in this instance since the decision to refuse to intubate the youngster was reasonable.
BOLAM OR BOLITHO
The Bolam test is the test in india that is used by the indian courts to assess medical negligence, unlike england where the courts have evolved their understanding of medical negligence from bolam’s test to bolitho, The indian courts primarily rely on the bolam test.
In Achutrao Haribhau Khodwa V State of Maharashtra, The court observed that the facts in this particular case spoke for themselves. This was a local anaesthetic procedure, thus it’s not known to be a serious procedure. According to Dr. Divan and Purandare, peritonitis was the cause of death. The res ipso loquitur (things speak for themselves) theory is certainly applicable in a situation such as this one.
As a result, the court held that the respondents were negligent.
The supreme court stated “The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable”
In the case of Dr. Laxman Balakrishna joshi V Trimbak bapu godbole, The bolam test was applied and approved, The test was also approved in State of Harayana & Ors. V Smt. Santra , In this case the surgeon was liable for compensation for failure of sterilization operation. Later in Dr. Suresh Gupta V Govt. of NCT of delhi.
in V. Kishan Rao v. Nikhil Super Speciality Hospital, The Supreme Court ruled that the res ipsa loquitur concept applies where negligence is obvious. In order to dispute the allegation of negligence, the respondent must show that they acted responsibly and fulfilled their obligation; the complainant does not need to provide any proof.
a two judge Bench of this Court highlighted the shortcomings of the Bolam test:
“19. Even though Bolam test was accepted by this Court as providing the standard norms in cases of medical negligence, in the country of its origin, it is questioned on various grounds. It has been found that the inherent danger in Bolam test is that if the courts defer too readily to expert evidence medical standards would obviously decline. Michael Jones in his treatise on Medical Negligence (Sweet and Maxwell), 4th Edn., 2008 criticised the Bolam test as it opts for the lowest common denominator. The learned author noted that opinion was gaining ground in England that Bolam test should be restricted to those cases where an adverse result follows a course of treatment which has been intentional and has been shown to benefit other patients previously. This should not be extended to certain types of medical accidents merely on the basis of how common they are. It is felt “to do this would set us on the slippery slope of excusing carelessness when it happens often enough”
In Arun Kumar Manglik v. Chirayu Health & Medicare (P) Ltd,
Here the apex court held that the treatment provided was in accordance with the medical council but it was not provided in time, which lead to the patients demise. The court stated “Our law must take into account advances in medical science and ensure that a patient-centric approach is adopted. The standard of care as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts”.
In montgomery v lanarkshire health board, The UK Supreme Court stated
“In any event, once the argument departs from purely medical considerations
and involves value judgments of this sort, it becomes clear, as Lord Kerr and
Lord Reed conclude at para 85, that the Bolam test, of conduct supported by
a responsible body of medical opinion, becomes quite inapposite. A patient
is entitled to take into account her own values, her own assessment of the
comparative merits of giving birth in the “natural” and traditional way and of
giving birth by caesarean section, whatever medical opinion may say,
alongside the medical evaluation of the risks to herself and her baby. She may
place great value on giving birth in the natural way and be prepared to take
the risks to herself and her baby which this entails. The medical profession
must respect her choice, unless she lacks the legal capacity to decide (St
George’s Healthcare NHS Trust v S [1999] Fam 26). There is no good reason
why the same should not apply in reverse, if she is prepared to forgo the joys
of natural childbirth in order to avoid some not insignificant risks to herself
or her baby. She cannot force her doctor to offer treatment which he or she
considers futile or inappropriate. But she is at least entitled to the information
which will enable her to take a proper part in that decision”.
CONCLUSION
Seeing an upsurge of cases of medical negligence in India ,The Indian courts should begin relying on bolitho’s test of logical analysis, Safe guarding the patients from medical negligence in case the board of experts have conflicting opinion ,The court should analyse the opinion of the experts and make it stand the test of logical analysis.
Rather than only relying on the opinion of the experts (like in bolam test) the courts should themselves also analyse whether duty of care was breached or not and whether the doctor performed to the best of his ability, Then the court should decide if negligence took place, Patients deserve to be completely safeguarded against malpractice and negligent conduct by doctors. On the other hand where the medical professionals performed their duty with utmost sincerity and with the consent of the patient those practitioners should be protected from false cases and should not be prosecuted or punished.
The hospitals are responsible for making sure that the doctors working over there are able to provide reasonable skill and duty of care to the patients, The hospitals should not overburden or make the doctors work very long hours, Doctor welfare committee’s should be made compulsory in all hospitals which act as a medium of communication between the board of hospital and all medical staff, Better communication will certainly go a long way in preventing medical negligence than just prosecuting the hospitals and doctors in courts. Rules requiring hospitals and clinical facilities to maintain records and have invigilators verify them on a regular basis is also important.
Doctors are burdened with performing the act of saving lives which in itself places them in a vulnerable space, A human doing gods work can never be expected to be perfect ,Specially due to the different nature and traits of each body, reacting differently, correcting gods mistakes is a benevolent act. sometimes even after the right treatment things go wrong, in those cases the doctors do not deserve to be prosecuted.
violence against doctors is prevalent in India as well, It is true that many hospitals are understaffed and the treatment they provide doesn’t meet the standard of care but the same should be taken to courts to sue rather than choosing violence against the medical service provider.
Finally, The profession of doctor is one which operates on the trust that patients have on their doctor, Doctors have the colossal responsibility to provide the right treatment with utmost sincerity and failing to do so should lead to severe punishment.
References-
1)Dr. Madhu Pathak, Dr.Anita Sharma, “MEDICAL NEGLIGENCE IN ANCIENT SCIENCE: A SYSTEMIC REVIEW”, Volume-6, GJAA (2017)
2)B. Sonny Bal, “An Introduction to Medical Malpractice in the United States”, Volume-462(2), NLM (2008)
3)Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634
4)Dr. Laxman Balakrishna joshi V Trimbak bapu godbole,1969 AIR 128
5)State of Harayana & Ors. V Smt. Santra (2000) 5 SCC 182
6)V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513
7)Chirayu Health & Medicare Private Limited v. Arun Kumar Manglik, 2019 SCC OnLine NCDRC 32
8)montgomery v lanarkshire health board [2015] UKSC 11
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