Consumer, Medical Profession and Negligence
- Pages: 26
- Word count: 6413
- Category: Health Care
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The changing doctor-patient relationship and commercialization of modern medical practice has affected the practice of medicine. On the one hand, there can be unfavorable results of treatment and on the other hand the patient suspects negligence as a cause of their suffering. There is an increasing trend of medical litigation by unsatisfied patients. The Supreme Court has laid down guidelines for the criminal prosecution of a doctor. This has decreased the unnecessary harassment of doctors. As the medical profession has been brought under the provisions of the Consumer Protection Act, 1986, the patients have an easy method of litigation. There should be legal awareness among the doctors that will help them in the proper recording of medical management details. This will help them in defending their case during any allegation of medical negligence. Introduction
The classical concept of a doctor-patient relationship born in the golden days of family physicians has undergone a drastic change due to dramatic advancement in medical technology, availability of sophisticated imaging systems, high tech electronics, and preponderance of new diseases. With the immense strides in technology, health care has emerged as a profitable sector attracting investors from varied backgrounds. Like other professionals, the medical men are liable to pay damages for their negligence under the law of torts. However, the accountability of the doctors under the law of professional negligence has emerged as a debatable issue among the medical fraternity all over the country after the enactment of the Consumer Protection Act 1986, which has not only changed the law of medical negligence, but created an inexpensive and speedy remedy against medical malpractice.
The judgement of the Honourable Supreme Court of India in Indian Medical Association vs VP Shantha AIR 1996 SC for the first time held that medical services ought to be brought under the purview of Consumer Protection Act since the patient is like a consumer and the discharge of duty of the doctor is a service. This has given a new dimension to the law of medical negligence and compensation by transforming the law from ‘a sealed book to a living letter’ and by making the law as ‘inheritance of the poor from patrimony of rich’. The dictum of the Apex Court has been greeted with mixed feelings by common people on one side and the medical profession on the other. Problem of Blameworthiness in Medical Profession
From 20th Century onwards, it has been witnessed awareness among people regarding the fundamental rights guaranteed by the constitutions in other countries and by the Constitution of India has increased. This has brought the medical profession under sustained scrutiny of both the public and by the courts. Health care professionals have faced legal actions instituted by the patients not only in India but in other countries as well. In the course of practice of medicine, healthcare professionals, just like other people in different areas, have to face errors despite prudence and care, such as wrong diagnosis and treatment, or by otherwise doing something, which is termed as “wrong” or “harmful” – to their patients.
Any kind of wrong action or misjudgement may result in the death of a patient. This fallibility, inherent in the medical profession like in any other human action(s), is directly related with legal action. In fact, in the medical field, consequences are high and serious. Health care professionals will have to learn to bear with not only their technical know-how, but also with their moral fallibility in performance of their duty. It is said: A good person is not described by a tabulation of single actions and choices bereft of context but rather as the Greeks saw it, by their “self-making” or the ability to learn from situations and, in consequences to change themselves for the better.Patients should invariably be informed about the mistakes in diagnosis or management – that is part of truth-telling and an issue that is hard to argue against. To hide such mistakes from patients or family is a violation of truth-telling in every sphere of life. Important Definitions:
1. Who can file a Complaint?
A consumer or any recognized consumer association, i.e., voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force, whether the consumer is a member of such association or not, or the central or state government. 2. Consumer
A consumer is a person who hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person hires or avails of the services for consideration paid or promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. This definition is wide enough to include a patient who merely promises to pay. 3. Complaint
A complaint is an allegation in writing made by a Complainant, i.e., a consumer that he or she has suffered loss or damage as a result of any deficiency of service. 4. Deficiency of service
Deficiency of service means any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance that is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. 5. Where is a complaint filed?
A complaint can be filed in
1) the District Forum if the value of services and compensation claimed is less than 20 lakh rupees, 2) before the State Commission, if the value of the goods or services and the compensation claimed does not exceed more than 1 crore rupees, or 3) in the National Commission, if the value of the goods or services and the compensation exceeds more than 1 crore rupees. There is a minimal fee for filing a complaint before the district consumer redressal forums. 6. Provision for appeal
An appeal against the decision of the District Forum can be filed before the State Commission. An appeal will then go from the State Commission to the National Commission and from the National Commission to the Supreme Court. The time limit within which the appeal should be filed is 30 days from the date of the decision in all cases. Powers of the consumer redressal forums
The forums have a variety of powers. They are
1) the summoning and enforcing of the attendance of any defendant or witness and examining the witness under oath, 2) the discovery and production of any document or other material object producible as evidence, 3) the reception of evidence on affidavits,
4) the summoning of any expert evidence or testimony,
5) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source, 6) issuing of any commission for the examination of any witness, and 7) any other matter which may be prescribed.
Short Title| Full Title| Level of Establishment| No of Members| Type of Members| Jurisdiction in term of cost of goods or services| District forum| Consumer dispute redressal forum| District level| 3| – District Judge, – 1 member of eminence,
– 1 lady social worker| Dispute involving upto Rs. 20 Lacs.| State commission| Consumer disputes redressal commission| State level| 3| – High court judge, – 1 member of eminence,
– 1 lady social worker| Dispute involving between Rs. 20 Lacs and 1 crore.| National
commission| Consumer dispute
redressal commission| National level| 5| – Supreme court judge, – 3 members of eminence,
– 1 lady social Worker| Dispute involving
more than Rs. 1 crore|
Adjudication of liability takes place
The process before the competent forum will be set in motion in the following manner. When the Complainant files a written complaint, the forum, after admitting the complaint, sends a written notice to the opposite party asking for a written version to be submitted within 30 days. Thereafter, subsequent to proper scrutiny, the forum would ask for either filing of an affidavit or production of evidence in the form of interrogatories, expert evidence, medical literature, and judicial decisions. Negligence is simply the failure to exercise due care. The three ingredients of negligence are as follows: 1. The defendant owes a duty of care to the plaintiff.
2. The defendant has breached this duty of care.
3. The plaintiff has suffered an injury due to this breach. Medical negligence is no different. It is only that in a medical negligence case,
most often, the doctor is the defendant.
When does a duty arise?
It is well known that a doctor owes a duty of care to his patient. This duty can either be a contractual duty or a duty arising out of tort law. In some cases, however, though a doctor-patient relationship is not established, the courts have imposed a duty upon the doctor. In the words of the Supreme Court “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life” (Parmanand Kataria vs. Union of India). These cases are however, clearly restricted to situations where there is danger to the life of the person. Impliedly, therefore, in other circumstances the doctor does not owe a duty. What is the duty owed?
The duty owed by a doctor towards his patient, in the words of the Supreme Court is to “bring to his task a reasonable degree of skill and knowledge” and to exercise “a reasonable degree of care” (Laxman vs. Trimback). The doctor, in other words, does not have to adhere to the highest or sink to the lowest degree of care and competence in the light of the circumstance. A doctor, therefore, does not have to ensure that every patient who comes to him is cured. He has to only ensure that he confers a reasonable degree of care and competence. Reasonable degree of care
Reasonable degree of care and skill means that the degree of care and competence that an “ordinary competent member of the profession who professes to have those skills would exercise in the circumstance in question.” At this stage, it may be necessary to note the distinction between the standard of care and the degree of care. The standard of care is a constant and remains the same in all cases. It is the requirement that the conduct of the doctor be reasonable and need not necessarily conform to the highest degree of care or the lowest degree of care possible. The degree of care is a variable and depends on the circumstance. It is used to refer to what actually amounts to reasonableness in a given situation. Thus, though the same standard of care is expected from a generalist and a specialist, the degree of care would be different. In other words, both are expected to take reasonable care but what amounts to reasonable care with regard to the specialist differs from what amount of reasonable care is standard for the generalist. In fact, the law expects the specialist to exercise the ordinary skill of this speciality and not of any ordinary doctor.
Though the courts have accepted the need to impose a higher degree of duty on a specialist, they have refused to lower it in the case of a novice. Another question that arises is with regard to the knowledge that is expected from a doctor. Should it include the latest developments in the field, hence require constant updating or is it enough to follow what has been traditionally followed? It has been recognized by the courts that what amounts to reasonableness changes with time. The standard, as stated clearly herein before requires that the doctor possess reasonable knowledge. Hence, we can conclude that a doctor has to constantly update his knowledge to meet the standard expected of him.
Furthermore, since only reasonable knowledge is required, it may not be necessary for him to be aware of all the developments that have taken place. We have, until now, examined the duty of a doctor in so far as treating a patient is concerned or in diagnosing the ailment. Doctors are, however, imposed with a duty to take the consent of a person/patient before performing acts like surgical operations and in some cases treatment as well. To summarize, any act that requires contact with the patient has to be consented by the patient. A duty of care is imposed on the doctors in taking the patient’s consent. Naturally, a question arises as to what is this duty of care. As per the judicial pronouncements, this duty is to disclose all such information as would be relevant or necessary for the patient to make a decision. Therefore, the duty does not extend to disclosing all possible information in this regard. Furthermore, this duty does not extend to warning a patient of all the normal attendant risks of an operation. The standard of care required of a doctor while obtaining consent is again that of a reasonable doctor, as in other cases. When does the liability arise?
The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In other words, the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the plaintiff must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of duty, the burden on the plaintiff would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to merely show that there exists a body of opinion which goes against the practice/conduct of the doctor. With regard to causation, the court has held that it must be shown that of all the possible reasons for the injury, the breach of duty of the doctor was the most probable cause. It is not sufficient to show that the breach of duty is merely one of the probable causes.
Hence, if the possible causes of an injury are the negligence of a third party, an accident, or a breach of duty care of the doctor, then it must be established that the breach of duty of care of the doctor was the most probable cause of the injury to discharge the burden of proof on the plaintiff. Normally, the liability arises only when the plaintiff is able to discharge the burden on him of proving negligence. However, in some cases like a swab left over the abdomen of a patient or the leg amputated instead of being put in a cast to treat the fracture, the principle of ‘res ipsa loquitur’ (meaning thereby ‘the thing speaks for itself’) might come into play. The following are the necessary conditions of this principle. 1. Complete control rests with the doctor.
2. It is the general experience of mankind that the accident in question does not happen without negligence. This principle is often misunderstood as a rule of evidence, which it is not. It is a principle in the law of torts. When this principle is applied, the burden is on the doctor/defendant to explain how the incident could have occurred without negligence. In the absence of any such explanation, liability of the doctor arises. Normally, a doctor is held liable for only his acts (other than cases of vicarious liability). However, in some cases, a doctor can be held liable for the acts of another person which injures the patient. The need for such a liability may arise when the person committing the act may not owe a duty of care at all to the patient or that in committing the act he has not breached any duty. A typical example of a case where such a situation may arise is in the case of a surgery. If a junior doctor is involved as part of the team, then his duty, as far as the exercise of the specialist skill is concerned, is to seek the advice or help of a senior doctor. He will have discharged his duty once he does this and will not be liable even if he actually commits the act which causes the injury. In such a case, it is the duty of the senior doctor to have advised him properly. If he did not do so, then he would be the one responsible for the injury caused to the patient, though he did not commit the act. When there is no liability
A doctor is not necessarily liable in all cases where a patient has suffered an injury. This may either be due to the fact that he has a valid defense or that he has not breached the duty of care. Error of judgment can either be a mere error of judgment or error of judgment due to negligence. Only in the case of the former, it has been recognized by the courts as not being a breach of the duty of care. It can be described as the recognition in law of the human fallibility in all spheres of life. A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. It is situation in which only in retrospect can we say there was an error. At the time when the decision was made, it did not seem wrong. If, however, due consideration of all the factors was not taken, then it would amount to an error of judgment due to negligence.
Judicial Interpretation of Medical Negligence Liability
By and large the following legal issues have been addressed and responded to by different forums and Courts in India. Charge of Medical Negligence against Professional Doctors
From the time of Lord Denning until now it has been held in several judgments that a charge of professional negligence against the medical professional stood on a different footing from a charge of negligence against the driver of a motor car. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor. It is a known fact that with the best skill in the world, things sometimes went wrong in medical treatment or surgical operation. A doctor was not to be held negligent simply because something went wrong. The National Commission as well as the Apex Court in catena of decisions has held that the doctor is not liable for negligence because of someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way. He is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals. The Hon’ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Trimbak, AIR 1969 SC 128, has held the above view that is still considered to be a landmark judgment for deciding a case of negligence.
In the case of Indian Medical Association vs. Santha, the Apex Court has decided that the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the Complainant to prove that a doctor was negligent in the line of treatment that resulted in the life of the patient. Therefore, a Judge can find a doctor guilty only when it is proved that he has fallen short of the standard of reasonable medical care. The principle of Res-Ipsa-Loquitur has not been generally followed by the Consumer Courts in India including the National Commission or even by the Apex Court in deciding the case under this Act. In catena of decisions, it has been held that it is for the Complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubts. Mere allegation of negligence will be of no help to the Complainant. What Constitutes Medical Negligence?
Failure of an operation and side effects are not negligence. The term negligence is defined as the absence or lack of care that a reasonable person should have taken in the circumstances of the case. In the allegation of negligence in a case of wrist drop, the following observations were made. Nothing has been mentioned in the complaint or in the grounds of appeal about the type of care desired from the doctor in which he failed. It is not said anywhere what type of negligence was done during the course of the operation. Nerves may be cut down at the time of operation and mere cutting of a nerve does not amount to negligence.
It is not said that it has been deliberately done. To the contrary it is also not said that the nerves were cut in the operation and it was not cut at the time of the accident. No expert evidence whatsoever has been produced. Only the report of the Chief Medical Officer of Haridwar has been produced wherein it said that the patient is a case of post-traumatic wrist drop. It is not said that it is due to any operation or the negligence of the doctor. The mere allegation will not make out a case of negligence, unless it is proved by reliable evidence and is supported by expert evidence. It is true that the operation has been performed. It is also true that the Complainant has many expenses but unless the negligence of the doctor is proved, she is not entitled to any compensation. Standard of Care
It is now a settled principle of law that a medical practitioner will bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor the very lowest degree of care and competence judged in the light of circumstances in each case is what the law requires. Judged from this yardstick, post-operative infection or shortening of the leg was not due to any negligence or deficiency in service on the part of the opposite party Appellant. Deficiency in service thus cannot be fastened on the opposite party. In a case that led to visual impairment as a side effect, the following observations were made.
The literature with regard to lariago clearly mentioned that the side effect of this medicine if taken for a longer duration can effect eyesight but this is not a fact in this case. Besides, there is no expert evidence on record to show that use of this medicine caused damage to the patient’s eyesight. Even for argument’s sake, if it is accepted that this medicine caused damage to the patient’s eyesight, if the Respondent-doctor is one who has advised his patient to use this medicine after an examination in which he found the patient to be suffering from malaria, in that case as well the doctor-Respondent cannot be held guilty of negligence or deficient in his service. However, as stated above in this case the medicine has been used by the patient in low doses for a few days and there is no expert evidence to show that the use of medicine has affected his eyesight. Therefore, the Complainant-Appellant has failed to prove that the Respondent was negligent and deficient in his duty as a doctor. Proof of Medical Negligence
It has been held in different judgments by the National Commission and by the Hon’ble Supreme Court that a charge of professional negligence against a doctor stood on a different footing from a charge of negligence against a driver of a vehicle. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor. It is a known fact that even with a doctor with the best skills, things sometimes go wrong during medical treatment or in a surgery. A doctor is not to be held negligent simply because something went wrong. It is an admitted fact that the Complainant’s eyesight was not restored after the operation was conducted by the Appellant but on this ground alone a doctor can not be held negligent because even after adopting all necessary precautions and care the result of the operation may not be satisfactory since it depends on various other factors. The contention of the Appellant was that the patient was suffering from diabetes and blood pressure and in many such cases eyesight is not restored after the operation however carefully it is done. In this case, there is nothing on record to show that something went wrong due to an act of the Appellant-doctor.
There is no evidence to come to the conclusion that the Appellant fell below the standard of a reasonably competent practitioner in their field, so much so that their conduct might be deserving of censure. The Appellant cannot be liable for negligence because someone else of better skill or knowledge would have prescribed a different method of operation in different way. The evidence suggests that the Appellant has performed the operation and acted in accordance with the practice regularly accepted and adopted by him in this hospital and several patients are regularly treated for their eye problems. The Hon’ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Triambak, AIR 1969 Supreme Court page 128 has held the above view and this view has been further confirmed in the case of the Indian Medical Association vs. Santha. The Apex Court and the National Commission has held that the skill of a medical practitioner differs from doctor to doctor and it is an incumbent upon the Complainant to prove that the Appellant was negligent in the line of treatment that resulted in the loss of eyesight.
A Judge can find a doctor guilty only when it is proved that he has fallen short of a standard of reasonable medical care. The fact and circumstances of the case before us show that the Appellant has attended to the patient with due care, skill, and diligence. Simply because the patient’s eyesight was not restored satisfactorily, this account alone is not grounds for holding the doctor guilty of negligence and deficient in his duty. It is settled law that it is for the Complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubt. Mere allegation of negligence will be of no help to the Complainant. The following cases of alleged medical negligence provide an insight into how the final decision is reached by the judicial bodies. “All medical negligence cases concern various questions of fact, when we say burden of proving negligence lies on the Complainant, it means he has the task of convincing the court that his version of the facts is the correct one”. No expert opinion has been produced by the Complainant to contradict the report of the Board of Doctors.
The appeal of the Complainant was dismissed with costs as “No expert opinion has been produced by him.” In a case of an improper union of the patella, no expert has been produced by the Complainant to prove negligence of the opposite party. Thus, it cannot be said with exactness that treatment of the Complainant by the opposite party was against the norms prescribed under the medical jurisprudence or that the opposite party in any way was negligent or deficient in the performance of his duties. “Allegation of medical negligence is a serious issue and it is for the person who sets up the case to prove negligence based on material on record or by way of evidence”. The complaint of medical negligence was dismissed because the applicant failed to establish and prove any instance of medical negligence. “Merely because the operation did not succeed, the doctor cannot be said to be negligent” and the appeal of the doctor was allowed.
“A mere allegation will not make a case of negligence unless it is proved by reliable evidence and is supported by expert evidence” and the appeal was dismissed. “The commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could be based” and the Revision petition of the doctor was allowed. In another case, an X-ray report indicated a small opacity that similar to an opaque shadow that becomes visible for many causes other than a calculus. It could not be assumed that still stone existed in the right kidney that had not been operated upon. Under the circumstances, we do not think that any case of negligence has been made by the Complainant. This petition is, therefore, allowed. The Need for Expert Evidence in Medical Negligence Cases
The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could be based. In this case there was a false allegation of urinary stone not being removed as shown by a shadow in the xray “The burden of proving the negligent act or wrong diagnosis was on the Complainant” and the appeal was dismissed in another case of alleged medical negligence as no expert evidence was produced. The case discussed below is not a case of apparent negligence on the part of the surgeon in conducting the operation, but about the quality of the plate used for fixing the bone. In the present case, the Complainant has not produced any expert witnesses to prove that there was any fault in the performance of the operations. Fixation of the bones by using plates is one of the recognized modes of treatment in the case of fracture of the bones. If the opposite party has adopted the aforesaid method, though subsequently the plate broke, negligence cannot be attributed to the doctor.
This is not a case where the wounds of the operation were infected or any other complication arose. Breaking of the plate approximately 6 months after it was placed cannot be attributed towards a negligent act of the doctor in performing the operation. The District Forum rightly held that the Complainant had failed to prove his case. There is nothing on the record to suggest that there has been any negligence and/or deficiency in service on the part of the Appellant except the oral submission of the Respondent/Complainant. In such cases, before coming to a positive finding, there must be expert evidence on record as has been held both by the National Commission as well as the Apex Court. “As per the settled law, the onus to prove that there was negligence” deficiency in service on the part of the opposite parties, while diagnosing and treating the Complainant, lay heavily on the Complainant. In the given facts, the Complainant has failed to discharge the onus that was on him.
The complaint was dismissed as the Complainant failed to discharge the onus to prove negligence or deficiency in service. In medical negligence cases, it is for the patient to establish his case against the medical professional and not for the medical professional to prove that he acted with sufficient care and skill. Refer to the decision of the Madhya Pradesh High Court in the case of Smt. Sudha Gupta and Ors. vs. State of M.P. and Ors., 1999 (2) MPLJ 259. The National commission has also taken the same view observing that a mishap during operation cannot be said to be deficiency or negligence in medical services. Negligence has to be established and cannot be presumed. Refer to the decision of the National Commission in the case of Kanhiya Kumar Singh vs. Park Medicare and Research Centre, III (1999) CPJ 9 (NC) – (2000) NCJ (NC) 12. A similar view has been taken by the MRTP Commission in the case of P.K. Pandeyvs. Sufai Nursing Home, I (1999) CPJ 65 (MRTP) – 2000 NCJ (MRTP) 268. Followed by this, refer to the Commission in Vaqar Mohammed Khan and Anr. vs. Dr. S. K. Tandon, II (2000) CPJ 169.
Both the lower Fora have held that there is no evidence brought on record by the Complainant to show that there was any negligence by the Respondent while implanting the lens in the eye of the Complainant resulting in a persistent problem in the left eye. The Complainant does not examine any expert on the subject to establish his allegation of negligence on the part of the doctor. Unfortunate though the incident is, the Complainant needs to establish negligence on the part of the doctor to succeed in a case like this. We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of Complainant. Under the circumstances, we cannot but hold that the Complainant has failed to prove the allegations against the opposite parties. As held by the National Commission in Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and anr., 1998 CTJ7, in the absence of such evidence regarding the cause of death and absence of any expert medical evidence, the Complainants have failed to prove negligence on the part of the opposite parties.
In order to decide whether negligence is established in any particular case, the alleged act, omission, or course of conduct that is the subject of the complaint must be judged not by ideal standards nor in the abstract but against the background of the circumstances in which the treatment in question was given. The true test for establishing negligence on the part of a doctor is as to whether he has been proven guilty of such failure as no doctor with ordinary skills would be guilty of if acting with reasonable care. Merely because a medical procedure fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving this rests upon the person who asserts it.
The duty of a medical practitioner arises from the fact that he does something to a human being that is likely to cause physical damage unless it is not done with proper care and skill. There is no question of warranty, undertaking, or profession of a skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. As per the law, a defendant charged with negligence can clear himself if he shows that he acted in accordance with the general and approved practice. It is not required in the discharge of his duty of care that he should use the highest degree of skill, since this may never be acquired. Even a deviation from normal professional practice is not necessary in all cases evident of negligence.
The Hon’ble Mr. Justice Markendeya Katju has done yeoman service for society by rendering this judgment. On one hand, it sets at rest the speculative nature of our judicial adjudication of medical negligence liability and on the other, it abundantly clarifies that unless there is prima facie evidence indicating medical negligence, notice either to a doctor or hospital cannot be issued. At the same time, the core essence of the judgment makes it very clear that there cannot be an assumption that doctors cannot be negligent while rendering care and treatment. I think this timely intervention should be disseminated at a popular level so that the mandated Supreme Court’s prescription will be observed more in practice than in breach.
[ 2 ]. E. Pincoffs, “Quandry Ethics”, 80 Mind 552-571
[ 3 ]. E.H. Loewy et al, Textbook of Health care Ethics,
[ 4 ]. Ibid.
[ 5 ]. AIR 1989 SC 2039
[ 6 ]. AIR 1969 SC 128
[ 7 ]. Smt. Savitri Singh v. Dr. Ranbir PD. Singh and others. 2004;(1) CPJ 25 (Bihar) [ 8 ]. Smt. Vimlesh Dixit v. Dr. R.K. Singhal. 2004;(I) CPJ 123 (Uttaranchal) [ 9 ]. Dr. Kamta Prasad Singh v. Nagina Prasad. 2000;(III) CPJ 283 (WB) [ 10 ]. Ajay Kumar v. Dr. Devendra Nath. 2004;(II) CPJ 482. [ 11 ]. Dr. Akhil Kumar Jain v. Lallan Prasad. 2004;(II) CPJ 504. [ 12 ]. Amar Singh v. Frances Newton Hospital and Anr. 2001;(I) CPJ 8. [ 13 ]. Mam Chand v. Dr. GS Mangat of Mangat Hospital. 2004;(I) CPJ 79 (NC) [ 14 ]. Dr. (Smt) Kumud Garg v. Raja Bhatia. 2004;(I) CPJ 369. [ 15 ]. Smt. Vimlesh Dixit v. Dr. R.K. Singhal. 2004;(I) CPJ 123 (Uttaranchal) [ 16 ]. AIR 1989 SC 2039.
[ 17 ]. Dr. Harkanwaljit Singh Saini v. Gurbax Singh and Anr. 2003;(I) CPJ 153 (NC) [ 18 ]. Dr. Karkanwaljit Singh Saini v. Gurbax Singh and another. 2003;(I) CPJ 153 (NC) [ 19 ]. Ns Sahota v. New Ruby Hospital and Ors. 2000;(II) CPJ 345. [ 20 ]. Sardool Singh v. Muni Lal Chopra and another. 1999;(I) CPJ 64 (Punjab) [ 21 ]. Dr. Manjit Singh Sandhu v. Uday Kant Thakur and others. 2002;(III) CPJ 242. [ 22 ]. Director, Rajiv Gandhi Cancer Institute and Research Centre and Ors. 2003;(I) CPJ 305 (Delhi) [ 23 ]. Director, Rajiv Gandhi Cancer Institute and Research Centre and Ors. 2003;(I) CPJ 305 (Delhi) [ 24 ]. Marble City Hospital and Research Centre and Ors. v. V.R. Soni. 2004;(II) CPJ 102 (MP) [ 25 ]. Nirmalendu Paul v. Dr. P.K. Bakshi and anr. 2000;(III) CPJ 79. [ 26 ]. Surinder Kumar (Laddi) and anr. V. Dr. Santosh Menon and Ors. 2000;(III) CPJ 517. [ 27 ]. Rajinder Singh v. Batra Hospital and Medical Research Centre and Anr. 2000;(III) CPJ 558.