Supreme Court on Medical Negligence
Applicability of Consumer Protection Act.
Indian Medical Assn. v. V.P. Shantha, (1995) 6 SCC 651. Para 55
(1) Service rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Consumer Protection Act.
(Except where the doctor renders service free of charge to every patient or under a contract of personal service).
(2) Medical practitioners are subject to the disciplinary control would not exclude the services from the ambit of the Act.
(3) In the absence of a relationship of master and servant between the patient and medical practitioner, it is a service.
(4) Service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ‘service’.
(5) Service rendered free of charge by a medical practitioner attached to a hospital/nursing home where such services are rendered free of charge to everybody, would not be ‘service’. Token amount for registration purpose only at the hospital/nursing home would not alter the position.
(6) Service rendered at a non-government hospital/nursing home where no charge whatsoever is made from any person availing of the service and all patients (rich and poor) are given free service — is outside the purview of the expression ‘service’. Token amount for registration purpose only at the hospital/nursing home would not alter the position.
(7) Service rendered at a non-government hospital/nursing home where charges are required to be paid by the persons availing of such services falls within the purview of the expression ‘service’.
(8) Service rendered at a non-government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ‘service’ irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be ‘service’ and the recipient a ‘consumer’ under the Act.
(9) Service
rendered at a government hospital/health centre/dispensary where no
charge whatsoever is made from any person availing of the services
and all patients (rich and poor) are given free service — is outside the
purview of the expression ‘service’. Token amount for registration purpose
would not alter the position.
(10) Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression ‘service’.
(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing of the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company.
(12) Where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would be ‘service’.
Bolam Test
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 “If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”. “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man.need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising’ that particular art (a health care professional), is not guilty of negligence if he has ‘acted in accordance with a practice accepted as proper by a responsible body of medical man skilled in the particular act” Bolam test says that to term the act of doctor as negligent we should consider the act of another doctor in the ‘similar circumstances and facilities as existed with the treating doctor. Also the professional knowledge andskill of the treating·doctor should be compared with another doctor having same educational background. Courts in a multiple number of’ cases’ have very well settled these issues worldwide
V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513
Bolam was suffering from mental illness of the depressive type and was advised by the doctor attached to the defendants’ Hospital to undergo electroconvulsive therapy. Prior to the treatment Bolam signed a form of consent to the treatment but was not warned of the risk of fracture involved. Even though the risk was very small and on the first occasion when the treatment was given Bolam did not sustain any fracture but when the treatment was repeated for the second time, he sustained fractures. No relaxant drugs or manual control were used except that a male nurse stood on each side of the treatment couch throughout the treatment. About this treatment there were two bodies of opinion, one of which favoured the use of relaxant drugs or manual control as a general practice, and the other opinion was for the use of drug that was attended by mortality risks and confined the use of relaxant drugs only to cases where there are particular reasons for their use and Bolam case was not under that category. On these facts the expert opinion of Dr. J. de Bastarrechea, consultant psychiatrist attached to the Hospital was taken. Ultimately the Court held that the doctors were not negligent. A Doctor is not 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.
Kusum Sharma v. Batra Hospital, (2010) 3 SCC 480
The ratio of Bolam case is that it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, 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 point of time on which it is suggested as should have been used.
I. 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.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. 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.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. 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.
VI. 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.
VII. 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.
VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
IX. 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.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising 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.
XI. 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.
Samira Kohli v. Dr. Prabha Manchanda, (2008) 2 SCC 1.
(i) A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. … Putting it the other way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. (All ER p. 122 B-D)
(ii) When a doctor dealing with a sick man strongly believed that the only hope of cure was submission to a particular therapy, he could not be criticised if, believing the danger involved in the treatment to be minimal, did not stress them to the patient.
(iii)
In order to recover damages for failure to give warning the plaintiff must show
not only that the failure was negligent but also that if he had been warned he
would not have consented to the treatment. (All ER p. 118 H-I)
Bonafide Mistake, Error of Judgment etc
Spring Meadows Hospital v. Harjol Ahluwalia, (1998) 4 SCC 39
1. Bona fide mistake under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor.
2. An error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is made by a reasonably competent professional man professing to have the standard and type of skill and acting with ordinary care, then it is not negligence.
3. Gross medical mistake will always result in a finding of negligence.
4. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability
5. Delegation of responsibility to another may amount to negligence in certain circumstances. Delegates to his junior with the knowledge that the junior was incapable of performing of his duties properly.
Suresh Gupta (Dr.) v. Govt. of NCT of Delhi, (2004) 6 SCC 422 Criminal Liability
To convict a doctor, the prosecution has to come out with a case of high degree of negligence. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. Alleged criminal offence causing death of his patient during treatment must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.
Doctor was charged with Section 304-A IPC reads thus: “304-A. 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.”
The patient was operated by him for removing his nasal deformity. While conducting minor operation for removing nasal deformity, doctor gave incision at wrong part due to that blood seeped into the respiratory passage and because of that patient immediately collapsed and died. Death was due to ‘asphyxia resulting from blockage of respiratory passage by aspirated blood consequent upon surgically incised margin of nasal septum’. This indicates that adequate care was not taken to prevent seepage of blood down the respiratory passage which resulted in asphyxia.
The cause of death is stated to be “not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage”.
Defence taken Sections 80 and 88 IPC “80. Accident in doing a lawful act.—Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
88. Act not intended to cause death, done by consent in good faith for person’s benefit.—Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
SC says “this act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.
We find that no case of recklessness or gross negligence has been made out against the doctor to compel him to face trial for offence under Section 304-A IPC
Savita Garg v. Director, National Heart Institute, (2004) 8 SCC 56.
Ordinary human fallibility can be pardoned. A mistake which would tantamount to negligence cannot be. In the former case a court can accept. In the latter, the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor.
Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, 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 point of time on which it is suggested as should have been used.
A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence.
So also an error of judgment on the part of a professional is not negligence per se.
Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment.
At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil.
Medical professionals in criminal law
Criminal law places medical professionals on a different pedestal. IPC sets out examples. Section 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for person’s benefit. Section 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to the person and that person has not consented to suffer such harm.
Section 93 saves from criminality certain communications made in good faith. Illustrations
Section 88
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence.
Section 92
(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.
(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence.”
Section 93
A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.
To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause.
Conclusions summed up in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
(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 essential components of negligence are three: “duty”, “breach” and “resulting damage”.
(2) Negligence in the context of the medical profession 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.
(3) 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 resort to that practice or procedure which the accused followed.
(4) When it comes 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;
(5) 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).
(6) 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.
(7) 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.
(8) The test for determining medical negligence as laid down in Bolam case holds good in its applicability in India.
(9) 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 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.
(10) The word “gross” has not been used in Section 304-A IPC. 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”.
(11) 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.
Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221
The essential ingredients of Section 304-A are as under:
(i) Death of a person.
(ii) Death was caused by the accused during any rash or negligent act.
(iii) Act does not amount to culpable homicide.
And to prove negligence under criminal law, the prosecution must prove:
(i) The existence of a duty.
(ii)A breach of the duty causing death.
(iii) The breach of the duty must be characterised as gross negligence.
Kishore Lal v. Chairman, ESI Corpn., (2007) 4 SCC 579.
Cause of action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence. Therefore, the claimant has to satisfy these ingredients before he can claim damages for medical negligence of the doctors
Sterilisation
State of Haryana v. Santra, (2000) 5 SCC 182.
Negligence may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or negligence per se, which is defined in Black’s Law Dictionary as under:
Unwanted child Poor labourer woman, who already had many children and had opted for sterilisation, developed pregnancy and ultimately gave birth to a female child in spite of sterilisation operation which, obviously, had failed.
Smt Santra, claimed Rs 2 lakhs as damages for medical negligence. Decreed Rs 54,000 with interest. Confirmed
State of Punjab v. Shiv Ram, (2005) 7 SCC 1
40. Failure of many a sterilisation operation, though successfully performed, is attributable to causes other than medical negligence as we have already discussed hereinabove. And, yet doctors are being faced with claims for damages. Some of the claims have been decreed by the courts without arriving at any finding providing a foundation in law for upholding such a claim. Mostly such surgeries are performed on a large-scale and as a part of family welfare programmes of the Government. Obviously, such programmes are in public interest. Such like decrees act as a disincentive and have deterrent effect on the surgeons performing sterilisation operations. The State, flooded with such decrees is also inclined not to pursue family planning camps on large-scale though in public interest.
State of Haryana v. Raj Rani, (2005) 7 SCC 22.
A three-Judge Bench of this Court has held in State of Punjab v. Shiv Ram that childbirth in spite of a sterilisation operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognised the percentage of failure of the sterilisation operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognised by medical science. Thus, the pregnancy can be for reasons dehors any negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise. The decrees cannot, therefore, be upheld.
Childcare
B. Jagdish v. State of A.P., (2009) 1 SCC 681.
A person should not profess himself to be a child specialist unless he has the requisite expertise. Unless a person has a special skill to treat a child, ordinarily he could not have treated her, not because he was wholly incompetent therefor but because it required a specialised skill keeping in view the nature of the disease the child was suffering from.
Blood Transfusion
Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330.
Wrong blood transfusion is an error which no hospital/doctor exercising ordinary care would have made. Such an error is not an error of professional judgment but in the very nature of things a sure instance of medical negligence. The hospital’s breach of duty in mismatched blood transfusion contributed to her death, if not wholly, but surely materially. Mismatched blood transfusion to a patient having sustained 50% burns by itself speaks of negligence.
Expert Witness
Ramesh Chandra Agrawal v. Regency Hospital Ltd., (2009) 9 SCC 709
Without examining the expert as a witness in court, no reliance can be placed on an opinion alone. No expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of question put to him.
(i) that the expert must be within a recognised field of expertise,
(ii) that the evidence must be based on reliable principles, and
(iii)
that the expert must be qualified in that discipline.
Consent:
S.K. Jhunjhunwala v. Dhanwanti Kaur, (2019) 2 SCC 282.
The patient had given express consent in writing to perform only “laparoscopy surgery” but the appellant instead of performing “laparoscopy surgery” proceeded to perform conventional surgery and in that process removed her gall bladder.
Clause 4 of the Consent Form, the doctor was entitled to perform the conventional surgery as a substitute. Having noticed some abnormalities at the time of performing laparoscopy, it would not be possible for the team of doctors attending the patient to continue further with laparoscopy of the gall bladder.
Supreme Court said that there was no need to have another consent form to do the conventional surgery in the light of authorisation contained in Clause 4 itself because the substitute operation was of the same organ for which the former one was advised except with a difference of another well-known method known in medical subject to get rid of the malady.
Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of the doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in the field to prove the latter is required. Simply proving the former is not sufficient.
Unreasonable decision
Nand Kishore Prasad v. Mohib Hamidi, (2019) 6 SCC 512, at page 516 :
Unreasonable decision of the Operating Surgeon to operate is different from “bit negligent” so as to absolve the surgeon from the allegation of medical negligence.
High reward case:
Balram Prasad v. Kunal Saha, (2014) 1 SCC 384
182. In summary, the details of compensation under different heads are presented hereunder:
Loss of income of the deceased Rs 5,72,00,550
For medical treatment in Kolkata and Mumbai Rs 7,00,000
Travel and hotel expenses at Mumbai Rs 6,50,000
Loss of consortium Rs 1,00,000
Pain and suffering Rs 10,00,000
Cost of litigation Rs 11,50,000
Total amount Rs 6,08,00,550
Daksha Legal 