Introduction
Medical
Negligence has been the subject of much pondering and thought given by courts
in India. The judicial approach has been progressive and each judgment has been
a landmark in its own way. The purpose of this article is to examine the major
case laws on the subject and analyse the approach followed with respect
thereto.
Normally,
a medical man is not responsible to god or man for such evil consequences of
his prescriptions or surgical operations as they are entirely beyond his will
and therefore independent of his control. If, on the other hand, his mistakes
arise from his ignorance or want of skill, he is blameable in as far as he is
the willful cause of such ignorance, he should have either known better or,
not, knowing better, he should not have undertaken the case for which he was
not qualified. [1]
Meaning.-
Medical Negligence is a medical malpractice. Depending upon the consequences,
medical negligence may constitute a violation of either civil or criminal law.
Literally, the word ‘medical’ means
something relating to the science of medicine or to the treatment of illness
and injuries. The word ‘Negligence’ means failure to take proper care over
something. Medical negligence would mean a breach of duty of care, which
results in damage.
Definition.-
Medical
negligence is the breach of the duty owed by a doctor to his patient to
exercise reasonable care and skill, which results in some physical, mental or
financial disability.
Proof.-
For medical negligence to be proved, it must be shown that.-
(a) the
doctor had a duty of care to the patient;
(b) the
doctor was in ‘breach’ of that duty, i.e. failed in that duty;
(c) that
the patient suffered damage as a result.
Normally,
the task of proving negligence rests upon the person bringing the action. An
exception to the rule that the “burden of proof rests on the plaintiff is in
cases where the facts are so obvious that the onus is shifted to the doctor to
prove that his own negligence did not contribute to this state of affairs. This
doctrine is known as ‘res ipsa loquitur’
or ‘the facts speak for themselves’.
The
universally acknowledged definition of negligence was given by Baron Alderson
in Blyth v. Birmingham Waterworks –“Negligence is the omission to do something
which a reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs would do, or doing something which a
prudent and reasonable man would not do.” In the medical context,
negligence on the part of a medical practitioner is the omission to do
something which a reasonably competent medical practitioner, guided by such
medical knowledge and practice as is commonly known at the time and at the
place when he practices and further guided by such other considerations which
ordinarily regulate the conduct of reasonably competent medical practitioners,
would do, or doing something which a reasonably competent medical practitioner
would not do.
Legal
aspect.- A medical practitioner professes or promises to use reasonably
competent skill and care in the exercise of his act when he accepts a patient.
During the course of his treatment or operation, should he fail to exercise the
reasonable skill and care expected of a reasonably competent practitioner at
that time, he becomes liable to be charged with negligence, where his patient
is injured as a result of his treatment or operation.
Degree
of competency of the doctor.- A doctor must possess a reasonable degree of
proficiency and he must apply that proficiency with a reasonable degree of
diligence. No doctor is expected to possess all current medical knowledge nor
be able to apply all known diagnostic and therapeutic techniques. However, a
doctor of a particular status as regards grading and experience is expected to
have a standard of knowledge and capability corresponding to his position in
the profession.
Types of Negligence.-
1.
Criminal.- In order to hold a medical
practitioner criminally responsible for the death of his patient, it must be
established that his negligence or incompetence was such that it showed utter
disregard for life and safety of others in a manner that amounts to a crime
against the state. Such conduct may, therefore be punished under criminal law.
The degree as well as the kind of negligence is examined to prove whether or
not the act of negligence or incompetence constitutes a crime under provisions
of the law such as s.304 A, Indian Penal Code.
2.
Civil.- In civil negligence the kind as
well as the degree of negligence is such that it gives a right for
compensation. In order to establish civil negligence, it is not necessary to
prove that there was gross negligence.
Cases involving Criminal
Liability
Criminal
cases in this area are fewer than civil ones for obvious reasons. Unless the
circumstances hold the doctor to be culpable beyond doubt, criminal punishment
cannot be meted out.
One
of the earliest criminal cases taken cognizance of by the Honourable Supreme
Court is Juggankhan v. State of Madhya
Pradesh[2].
A registered Homeopath administered 24 drops of stramonium and a leaf dhatura
to the patient suffering from guinea worm who died as a result. He had no
knowledge of the effect of such substance. An inference of being rash and
negligent was drawn against him. The accused was held guilty under s.304A,I.P.C
and sentenced to two years rigorous imprisonment.
Cases involving
Tortious Liability
It
has been accepted beyond doubt that medical negligence gives rise to tortious
liability on part of the doctor and hospital. However, legal opinion has been
divided on the basis of the kindof damages to be awarded.
One
of the earlier cases in which general damages were awarded was Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak
Bapu Godbole and Anr[3].
While performing reduction of the
fracture the doctor used excessive force without giving anesthetic. The said
treatment resulted in cerebral embolism or shock resulting in the patient’s
death.
The doctor was held guilty of
negligence. Appeal was filed first to the High Court and then by special leave
to the Supreme Court. The appeal was dismissed and appellant held guilty. General
damages of Rs.3,000 were awarded.
The Supreme Court even reversed a
decision of the National Commission in Poonam
Verma Vs. Ashwin Patel and Ors[4]. A doctor entitled to practice homeopathy
only, prescribed an allopathic medicine to the patient, due to which the
patient died.
The
National Commission did not hold the doctor guilty but on appeal the Supreme
Court held that doctor’s conduct amounted to negligence per se. Damages for
negligence worth Rs.3,00,000 were directed to be paid to the wife of the
deceased.
In Achutrao
Haribhau Khodwa and Others Vs. State of Maharashtra and Others[5]
Rs.36,000 was granted as damages. A mop (towel) was left inside the body of the
patient during sterilization operation leading to her death. Gross dereliction
of duty was established by the Trial Court. High Court reversed the judgment.
On appeal against the order of the High Court, Supreme Court found that the
negligence of the hospital authorities was clearly established and that the
State was vicariously liable to pay the damages. Decree of the trial court was
restored.
Interim
relief was granted in the case of A.S.Mittal
and Anr Vs. State of U.P and Ors.[6]
Under a social service programme an eye-camp was conducted. All the patients
suffered from irreversible damage to their eyes due to the common contaminating
source of saline. A public interest litigation was brought before the court.
Guidelines were issued by the Government for the conduct of eye-camps. Though
negligence was not clearly established, the Court ordered relief for the
victims on humanitarian grounds. Interim relief of Rs.5,000 was paid to each of
the victims along with additional interim relief of Rs.12,500.
Recent Judgments
In
recent judgments the Honourable Court has been generous in granting
compensation to the patients.
The
Supreme Court has risen to the occasion and granted exemplary damages in Spring Meadows Hospital and others
v. Harjot Ahluwalia[7].
Nurse administered wrong injection
to the minor without conducting a sensitivity test to check for adverse
reactions on the patient. Child suffered a cardiac arrest and hospital
authorities did not have the necessary facilities. Child was rendered in a vegetative
state for life. National Commission held that there was deficiency in service
and that the parents of the minor were also entitled to compensation as
beneficiaries of service. Appeal made by
hospital authorities to the Supreme Court was dismissed. Rs.12.5 lakhs were
awarded as compensation to the minor and Rs. 5 lakhs to his parents.
In
State of Haryana and Ors v. Smt.Santra[8] the Court held that failure of
sterilization operation performed by doctor amounts to negligence. Appeal was
against the order of the District Court was filed to the High Court and then by
special leave to the Supreme Court. The appeals were dismissed. Damages worth
Rs.54,000 with interest at the rate of 12% p.a. from the date of judgment to
the date of payment.
In
Sobhag
Mal Jain v. State of Rajasthan and Ors.[9]
Excessive bleeding of the patient after delivery could not be controlled
due to negligence of the doctors. After repeated requests also the doctors did
not attend to the patient.
Writ petition filed to determine
the compensation of compensation to be paid to the husband of the deceased. By
applying the multiplier method, compensation of Rs.6,62,000 was awarded to be
paid within 30 days from receipt of the order and if not paid within the said
time-limit interest at the rate of 12% p.a. would be charged.
In
Samira Kohli v. Dr.
Prabha Manchanda & Anr[10],
the doctor was ordered to refund
all payments received from the patient with interest @ 10% p.a. from the date
of payment till the date of re-payment along with a sum of Rs.25,000/- as
compensation. It was alleged that the doctor was negligent in
treating the patient and removed her uterus and ovaries without her consent. Consent
was given by patient only for diagnostic procedure and not for therapeutic
treatment. Performing of a different surgery was held to be an unauthorized
invasion and interference with the patient’s body, which amounted to deficiency
in service.
Damages for negligence
valued at Rs.10,00,000/- and interest @ 6% p.a. from date of judgment to date
of payment by the Bombay High Court in Anita
Nagindas Parekh and Others v.. Dr. Anil C. Pinto.[11] Doctor was held
responsible for negligence while conducting the surgery, which lead to the
death of the patient.
The Delhi High Court awarded
Rs.12,47,488 is awarded as damages, along with interest at the rate of 10% p.a.
on Rs.10,47,488 with effect from March 1, 2000 till payment is made and on Rs.2
lakhs from the date of the judgment till payment is made in Sudha
Garg v. Union of India and Ors[12].
Negligence
in performance of UGIE (Upper Gastro Intestinal Endoscopy) resulting in damage
to esophagus, leading to infection in lungs and pus formation. Failure in both
diagnosis and treatment amounted to negligence.
Failure of tubectomy operation was
considered a deficient service in State
of Haryana and Ors v. Sudesh[13]. Negligence of doctor was established
and damages granted. Aggrieved by the order, appeal was made to the High Court.
Appeal was dismissed. Damages to the tune of Rs.1 lakh were awarded.
