Medical Negligence

The law does not define medical or professional negligence as a form of conduct that should
be set apart from the conduct of any other member of society offering a service. In the strict
legal sense no distinction is drawn between the negligence of a doctor, plumber or windowcleaner.
Basically, medical negligence means, negligence resulting from the failure
on the part of the doctor to act in accordance with medical standards in practice, which are
being practiced by an ordinarily and reasonably competent man practicing the same
profession. Medical men owe a duty in torts towards their patients whether there is any
contract with the patient or not. A medical man is expected to bring to the practice of his
profession the average amount of competence and skill that is expected of a reasonable doctor
placed in similar circumstances. A surgeon has been held to be negligent for leaving a wad of
surgical gauge in a patient body after an operation.
Winfield has defined negligence as tort which is breach of a legal duty to
take care which results in damage, undesired by the defendant to the plaintiff. An act
involving the above ingredients is a negligent act. It can very well be stated that negligence
comprises of; (a) existence of a legal duty
(b) breach of such legal duty (c) damage caused by the breach
Existence of legal duty
Whenever a person approaches another trusting him to possess certain skill, or special
knowledge on a given problem and depends on him for service and dispensation of that skill,
the second party is under an implied legal duty to exercise due diligence as is expected to act
at least in such a manner as is expected in the ordinary course from his contemporaries. So it
is not that the legal duty can only be contractual and not otherwise. Failure on the part of such
a person to do something which was incumbent upon him to do so, that which would be just
and reasonable tantamount to negligence. Every time a patient visits a doctor for treatment of
his ailment, he does not enter into any written contract but there is a contract by implication
and any lack of proper care can make the negligent doctor liable for breach of professional
duty.

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Breach of legal duty

Despite changing circumstances, there are concepts of duty and degrees of care which do not
change. For example, a medical practitioner must attend to his patient with reasonable prompt
attitudefailure to do so this, or an unreasonable delayMay give rise to a cause of action
in damages.
The duty of care is held to include the exercise of reasonable foresight. What is
reasonably foreseeable for the prudent practitioner will be decided in the light of medical
knowledge and orthodox practice at the time?
The question whether the defendant has committed a breach of duty is to be determined
by applying to his conduct the standard of a reasonable man. The degree or standard of care
which the law requires is that which is reasonable in the circumstances of a particular case.
The reasonable man is the ordinary prudent man of society. The highest competence or skill
is not expected of him.
Where anyone is engaged in a profession, the law expects him to possess the
average amount of competence in that particular profession, trade or calling and if he fails to
exercise that amount of average skill, he will be held liable for negligence. This is expressed
in Roman law by the maxim imperita culpae adnumeratur. Thus a doctor is expected to treat
his patients with the average competence of an ordinary doctor of the profession. But law
does not require the highest degree of care or expert knowledge in these matters. The test of
reasonableness in each particular case is always a question of fact.
Damage caused by the breach
The wrong, injury occasioned by such negligence is liable to be compensated in the terms of
money and the courts apply the well settled principles for determination of exact liquidated
amount. In a suit for damages on account of negligence, the onus lies on the patient to prove
that the doctor was negligent and said negligence resulted in the injury which is complained
to be compensated. The Honble Supreme Court in Charan Singh V. Healing Touch Hospital
has laid down that while quantifying damages, consumer forums are required to make an
attempt to serve ends of justice so that compensation is awarded. The purpose of
compensation aims to bring about qualitative change in the attitude of service provider.
Indeed calculation of damage depends on the facts and circumstances of each case.

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Medical negligence and civil liability

The liability of the doctor shall be civil or criminal or both. One of the essential elements in
criminal law is mens rea the guilty mind or an evil intention. The question arises as to
whether in cases of medical negligence whether slight, ordinary or gross is there any
criminal liability? As mens rea is essential, it is difficult to argue that the doctor had a guilty
mind and was negligent intentionally. This has been the main argument in most of the cases
in which the decision was to decide about the criminal liability. For instance, in Jacob
Mathew, neither the doctor nor any other hospital staff intentionally connected the empty
cylinder. Similarly, in Bolam, the doctors or the hospital did not want to do something wrong
intentionally. At no point of time, they had a guilty mind.
In Dr. Suresh Guptas Case Supreme Court of India, 2004 the court held that the
legal position was quite clear and well settled that whenever a patient died due to medical
negligence, the doctor was liable in civil law for paying the compensation. Only when the
negligence was so gross and his act was as reckless as to endanger the life of the patient,
criminal law for offence under section 304A of Indian Penal Code, 1860 will apply.

Provisions of the Consumer Protection Act, 1986

This statute has been enacted to provide for better protection of the interests of consumers,
making provision for the establishment of consumer councils and other authorities for the
settlement of consumer disputes and for matters connected therewith.

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Applicability of the Act

It has been provided in the act that it shall apply to all goods and services unless otherwise
expressly provided by the Central Government by notification. Medical services have never
been excluded from the applicability of the act by any notification issued by the Central
Government ever since the enactment of this Act.
Who is a consumer?
The term Consumer is defined in Section 2(d) of the Consumer Protection Act, 1986 in two
terms, one in reference to a consumer who purchases goods and the second in reference to a
person who hires services.
Any person who buys any goods against consideration is a consumer. (It
also includes any user of such goods, other than the person who buys such goods, where such
use is made with the original buyers approval.) However, if goods are purchased for resale or
any commercial purpose, then the buyer is not a consumer and cannot avail protection under
this Act.
Similarly, any person who hires services against consideration is also a consumer and it
includes any beneficiary of such services, of course with the approval of the original
consumer.
Strictly speaking, the definition penetrates the essence of
consumption and not merely the dereliction based on privity between the parties. Any user of
goods or beneficiary of services has also a legal right and locus standi to initiate action under
the Act. In the course of treatment of a patient, the bills and fees of the doctors may be paid
by an attendant or family member. The patient, as beneficiary, remains consumer. The
Honble Madras High Court while deciding writ petition in Dr. C.J.Subramania
V.Kumarasamy, interpreted the provisions of the Act vis a vis medical practitioners as under;
(a) The services rendered to patient by a medical practitioner or a hospital by way of
diagnosis and treatment both medical and surgical, would not come within the
meaning of service as defined in section 2(1)(o) of the consumer protection Act,
1986.
(b) A patient who undergoes treatment under a medical practitioner or a hospital by way
of diagnosis and treatment, both medical and surgical, cannot be considered to be a
consumer within the meaning of section 2(1) (d) of the Act.
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(c) The medical practitioner or hospital undertaking and providing paramedical services
of any category or kind cannot claim similar immunity from the provisions of the Act
and they would fall, to the extent of such services rendered by them, within the
definition of service and person availing of such service would be a consumer
within the meaning of the Act.
A patient was held to be not a user of the medical practitioners
services, and, therefore, the matter of a negligent operation was held to be outside the scope
of the Act. The Kerala State Commission, on the other hand, held that medical and legal
services of a practitioner are not in the nature of personal services and, therefore, the Act is
applicable to such services. The controversy has now been set at rest by the Supreme Court in
its decision in Indian Medical Association V. V.P.Shantha by holding that services rendered
by medical practitioners, hospitals and nursing homes, health centers, dispensaries, whether
governmental or private would all be covered by the Act where they are on paid basis. The
Supreme Court observed:
It is now settled that the Consumer Protection Act is applicable to
persons engaged in the medical profession either as private practitioners or as government
doctors working in hospitals or government dispensaries and that a patient who is a
consumer has to be awarded compensation for loss or injury suffered by him due to the
negligence of the doctor by applying the same tests as are applied to an action for damages
for

negligence

What is deficiency [Section 2(1) (g)]

Under the Act, deficiency in relation to any service means any fault, imperfection, shortcoming, inadequacy in the quality, nature and manner of performance which is required to be
maintained under law or has been undertaken by opposite party to be performed under a
contract or otherwise.

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Every surgical operation involves risks. It would be wrong indeed bad law,
to say that simply because a misadventure or mishap has occurred, thereby the hospital and
doctors are liable. Indeed it would be disastrous to the community if it were so. It would
mean that a doctor examining a patient or a surgeon operating at a table, instead of getting on
with his work, would for ever be looking over his shoulder to see if someone were coming up
with a dagger. For an action for negligence against a doctor is for him like upto a dagger. His
professional reputation for him is as dear, as his body, perhaps more so, and an action for
negligence can hurt his reputation as severally as a dagger can his body. Doctor must not,
therefore

be held negligent simply because something happens or goes wrong, as for

instance, if one of the risks inherent in the operation actually takes place or because some
complications arise which lessen or take away the benefits that were hoped for, or because in
a matter of opinion, he made an error of judgment. He should be held guilty of negligence
when he falls short of the standard of reasonable skilful man as held by National Commission
in Dr. N.T.Subrahmanyam V. Dr. B.Krishna Rao.

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