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Saumya Dwivedi,
Chhatrapati Shahuji Maharaj University
INTRODUCTION
"Health is wealth" is a statement that appears insignificant, yet it truly signifies that having good health is one of the fundamental aspects of being human. Doctors who practice a noble and sacred medical profession carry out their responsibilities with utmost care and caution. Nonetheless, the incidence of medical negligence litigation has markedly risen. Negligence in simplest terms means that a person is not performing any act as he/she is expected to perform it. Medical negligence means that there is a deviation from the standard of care or breach of duty that leads to the plaintiff incurring damage. Every act does not amount to a breach of duty; some essentials need to be fulfilled to prove medical negligence in torts.
ELEMENT OF MEDICAL NEGLIGENCE
· There must exist a duty of care.
· Breach of such duty
· Damage
1. There must exist a duty of care – There are numerous numbers of duties that are imposed on the person; it can be a moral duty or a legal duty. If a person fails to perform a moral duty, he or she is not punished by law, whereas failing to perform a legal duty leads to punishment by law.
For example, A may be under a moral duty to offer food to a starving person, but if it fails to offer it, then it does not constitute any liability, whereas if A was imposed with a legal duty to offer food to a starving person and A fails to perform it, then it constitutes liability on A.
2. Breach of such duty – It means non-observance of due care, which is required in a particular situation. “The standard is that of a reasonable or ordinarily prudent man. If a defendant has acted as a prudent man, there is no negligence.”[i]
The standard of care required is determined through the following components:
1. The importance of the object to be attained.
2. The magnitude of risk.
3. The amount of consideration for which services are offered.
a) The importance of the object to be attained: The law does not require a maximum degree of care, but the care required should be of optimum level. The quantum of care and diligence a person must take before undertaking a particular task as a reasonable person.
b) The magnitude of risk: The degree of care required varies according to the situation. Where the task is riskier and it has more inherent danger, the level of care and caution also increases; basically, it depends on the situation and circumstances.
c) The amount of consideration for which services are offered: The degree of care depends upon the kind of services offered by the defendant and consideration charged to the plaintiff. The higher the amount of consideration paid, the higher the threshold of the duty of care towards another.
3. Damage: It is also necessary that there must be damage caused to the plaintiff due to a breach of duty by the defendant. The duty to assess damages is determined by the respective court. The court, it is held, has to decide and determine every question that ultimately enables the parties to obtain the final judgment in a case in question, such as the proper measure of damages to be applied, remoteness of damages, and the amount that the plaintiff is entitled to as damages[ii].
CASE LAWS RELATED TO MEDICAL NEGLIGENCE-
To establish liability for medical negligence, the following test are need to be proved:
· There is a normal practice.
· It has not been adopted.
· No professional of ordinary skill would have performed the act with ordinary care.
The abovementioned tests are determinative of negligence practice by Charlesworth & Percy[iii] in their notable work on negligence.
Apex Court in case Kusum Sharma and Ors. v. Batra Hospital & Medical Research[iv] held that negligence is the breach of a duty exercised by an omission to do something which a prudent man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or does something that a prudent and reasonable man would not do.
The Hon’ble Apex Court in V. Kishan Rao v. Nikhil Super Specialty Hospital[v], examined the principle thoroughly and provided instances of cases of medical negligence where the Res Ipsa loquitur principle could be applied. The principle of Res Ipsa loquitur is said to be essentially an evidential principle, and said principle is intended to assist a claimant who, for no fault of his own, is unable to provide evidence as to how the accident has happened.
The Supreme Court ruled that any prudent or reasonable person who pursues a profession that requires a particular kind of training can be referred to as a professional in that profession, it is inherent to it that that person assures that he professes skills that are required while dealing with it. It shall be performed and exercised with a reasonable degree of care and caution[vi].
These are instances where medical negligence has been established due to breach of duty and deviation from standard duty, which prudent men need to practice.
In every circumstance, a person cannot be held liable for medical negligence. According to Lord Denning’s opinion as expressed in the case,[vii] “A practitioner was not to be held liable simply because things went wrong from mischance or his misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. A medical practitioner would be held liable only where his conduct fell below the standard of a reasonably competent practitioner in his field.”.
In Malay Kumar Ganguly v. Sukumar Mukherjee[viii], The Supreme Court said that the doctor could not be held liable only because something had gone wrong.
In the case of Philips India Ltd. v. Kunju Punnu[ix], Lord Nathan’s medical negligence was quoted as “the standard of care which the law requires is not an insurance against accidental slips. It is the degree of care that a normally skilful member of the profession is expected to exercise reasonably in the actual circumstances of the case in question. Not all errors or mistakes are indicative of negligence. It was held that the plaintiff could not prove the death of the doctor, and therefore the defendant could not be made liable.
In case of M/S Spring Meadow Hospital v. Navjot Ahuluwalia[x] , the court held that error of judgment is not necessarily negligence. To ascertain an error of judgment may, or may not, be negligent; it depends on the nature of the error. It is negligence if it represents an action that would not have been created by a professionally qualified individual who claims to possess the level and kind of expertise that the defendant claims to possess while exercising ordinary caution. If, on the contrary, man makes an error or mistake while performing with ordinary care, which he would have made, it cannot be regarded as negligence.
In the case of Sir Lawrence Jenkins in Emperor v. Omkar Rampratap[xi] , the court held that for an action for medical negligence, it needs to ascertain that there is a causal relation between the alleged illness and medical treatment, which needs to be proved that between the ailment and alleged negligent treatment, the doctor cannot be held liable for negligence.
The Supreme Court in case of Bombay Hospital and Medical Research Centre v. Asha Jaishwal[xii] , held that no doctor can assure life to his patient, but he can only make an attempt to treat the best of his ability, and if the patient does not survive, the fault cannot be fastened on the doctor as a case of medical negligence.
These cases establish a point that any accidental mis-happenings or errors in judgment will not indicate medical negligence until or unless it is proved that there is a breach of duty of care.
CONCLUSION
Negligence is the failure to fulfil a responsibility due to an omission to perform an activity that a prudent individual, guided by the rules that usually govern human affairs, would not do. To avoid liability, it is essential that a person must exercise reasonable care and caution. However, a person cannot be held accountable for medical negligence merely because something went wrong or there were accidental slips and falls. If he has taken adequate care and caution and maintained a standard of care, he cannot be held accountable merely because the plaintiff has suffered damage.[xiii]
REFERENCES
[i] Blyth v. Birmingham Waterworks, Ipsa Loquitur, https://ipsaloquitur.com/tort-law/cases/blyth-v-birmingham-waterworks/
[ii]Shaikh Gafoor v. State of Maharashtra, A.I.R. 2008 (NOC) 1637 (Bom.).
[iii] Negligence by Professionals, The Lawmatics, https://thelawmatics.in/negligence-by-professionals/
[iv]Medical Negligence, Drishti Judiciary, https://www.drishtijudiciary.com/current-affairs/medical-negligence#:~:text=res%20ipsa%20loquitor%3A-,V.,as%20the%20thing%20proves%20itself
[v]An Analysis of Medical Negligence, Law Bhoomi, https://lawbhoomi.com/wp-content/uploads/2020/10/b0c90-414130_c0e625a3da004e708d430126e4a18a46-1.pdf.
[vi]Ruchi Kumari, An Analysis of Tort of Medical Negligence in India, Legal Service India, https://www.legalserviceindia.com/legal/article-5714-an-analysis-of-tort-of-medical-negligence-in-india.html
[vii]Medical Negligence: The Judicial Approach by Indian Courts, Asian School of International Legal Studies, https://asiindia.org/medical-negligence-the-judicial-approach-by-indian courts/#:~:text=In%20the%20opinion%20of%20Lord,treatment%20in%20preference%20of%20another.
[viii]Simaranjeet, Medical Practitioners to Be Protected from Frivolous, Unjust Prosecution, BOMHC, https://www.scconline.com/blog/post/2024/09/26/medical-practitioners-to-be-protected-from-frivolous-unjust-prosecution-bomhc/
[ix]Philips India Ltd. v. Kunju Punnu [1974] 77 Bom. 306.
[x]Medical Negligence: The Judicial Approach by Indian Courts, Asian School of International Legal Studies, https://asiindia.org/medical-negligence-the-judicial-approach-by-indian courts/#:~:text=In%20the%20opinion%20of%20Lord,treatment%20in%20preference%20of%20another..
[xi]PubMed Central, https://pmc.ncbi.nlm.nih.gov/articles/PMC5109761/#:~:text=The%20causal%20relationship%20between%20breach%20and%20injury,or%20proximate%20causation%2C%20and%20in%20both%20cases%2C
[xii]Kamini Sharma, explained: Medical Negligence—Can Doctors Be Held Liable for Negligence if Patient Can’t Survive Surgical Procedures? (Dec. 5, 2021), https://www.scconline.com/blog/post/2021/12/05/explained-medical-negligence-can-doctors-be-held-liable-for-negligence-if-patient-cant-survive-surgical-procedures/.
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