Introduction:
Over the last few years numerous breakthroughs in medical science have resulted in increasing life expectancy and simultaneously brought about an improvement in the quality of life. The importance of the medical profession and the respect medical professionals command has increased tremendously. However, various extraneous factors have resulted in proliferation of institutions imparting medical institution with inadequate infrastructure as a result of which standards of medical education have been adversely affected to an extent. Further as a result of increasing commercialization there is a decrease in ethical values in society with “making money” becoming the prime motivator. Most professions have fallen prey to this attitude. Though insulated to a large extent the noble profession of doctors is also getting affected by these changes. Thus gone are the days when the doctor patient relationship was governed by mutual trust and instead today very often the helpless patient is treated like a commodity to be managed in a corporate environment.
Simultaneously due to simpler laws and concerted government efforts to educate its citizens about their legal rights, there has been rising awareness amongst all classes of people of their legal rights. This awareness of rights coupled with pro consumer legislation and judicial approach has emboldened citizens to approach judicial fora for redressal of their grievances. On the downside this has also resulted in citizens approaching judicial fora with a view to try their luck in litigation in facts that do not justify any such action being entertained.
In either case the result is the same, a doctor being a defendant in a medical malpractice claim. There is nothing that can perhaps be so professionally damaging and emotionally and mentally draining than being arrayed as a defendant in any such action, specially when the doctor has put in earnest efforts to alleviate the problems of the patient.
While there is not much one can do to prevent a disgruntled patient from approaching a judicial forum for redressal of grievances, there is certainly much that can be done to make sure that no such occasion arises at all. Further, an understanding of the law becomes all the more necessary for a doctor so that while performing his / her duties, the doctor is aware at every step what the law requires of him / her when attending to a patient. This article attempts to outline in brief the judicial approach to medical malpractice claims in India, some problems and solutions. This article first deals with legal avenues other than the Consumer Protection Act, 1986 (“CPA”) and then goes on to deal with the CPA itself – it being the preferred choice for litigants wanting to initiate action against medical professionals.
What is medical negligence ?
Before we begin it is important to understand what amounts to medical negligence. Ordinarily negligence can be defined as a breach of 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.
Negligence in the context of the medical profession necessarily calls for a different definition. Being a professional a doctor 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 or he did not exercise, with reasonable competence in a given case, the skill which he did possess. The basic principle relating to medical negligence is known as the BOLAM Rule and has been accepted by the Supreme Court as the standard test for medical negligence (Jacob Mathew v. State of Punjab (2005) 6 SCC 1). This was laid down in the judgment in
Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582 as under:
“……Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he as not got this special skill. The test is the standard of the ordinary skilled man exercising and profession 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…” (Emphasis supplied)
Thus to put it simply, medical negligence arises from an act or omission by a medical practitioner, which no reasonably competent and careful medical practitioner would have committed. Therefore a medical practitioner while attending to the patient is expected to adopt reasonably skilful behaviour and follow the ordinary skills and practices of the medical profession with ordinary care.
A claim for compensation based on medical negligence is primarily based on the following:
The doctor owed a duty of care to the patient
There has been a breach in the performance of the duty
The breach of the duty has resulted in consequential loss or harm to the patient concerned
Legal avenues other than the CPA available to aggrieved patients:
While the CPA enacted by the Parliament is the preferred choice for initiating action against erring medical professionals, prior to its enactment and even now, there are numerous legislations which can be utilized to initiate action against erring medical professionals. This section deals with these particular laws.
Indian Medical Council Act, 1956 and Dentists Act, 1948The above Acts regulate the profession of allopathic medicine and dentists in India respectively. Under the above Acts the Medical Council of India (“MCI”) and the Dental Council of India (“DCI”) have been constituted along with state medical / dental councils through which the aforesaid Acts are enforced. The MCI and the DCI are the supreme bodies in the country having jurisdiction over medical and dental practitioners. The MCI and DCI are authorized to recognize the medical qualifications granted by any institution in India or other countries.To be entitled to practice all medical / dental practitioners have to register with the MCI or the DCI as the case may be. The MCI / DCI or the appropriate state council having jurisdiction in the matter is empowered to punish persons who falsely claim to be registered with them or practice without being registered with them. The MCI also prescribes standards of professional conduct and a code of ethics to be followed by all medical practitioners violation of which is actionable.Some illustrative instances under which a doctor renders himself open to charges of misconduct and negligence are:
Conviction in a Court of law for a crime
Neglect in making professional reports / maintaining professional records
Improper conduct towards patients
Performing or associating with an illegal operation
Contravention of any law such as the Drugs and Cosmetics Act, 1940
Receiving, giving commission
Using touts to obtain business
Employing unqualified persons
Advertising for business
Associating or promoting drug manufacturers products
Refusing to treat patients on extraneous grounds
It may however be noted that the MCI / DCI or the state councils are not empowered to award compensation. However, they have the power to even debar permanently a person found guilty of the offence alleged.
Civil CourtThis is one of the oldest remedies available to aggrieved persons. Thus an aggrieved person can initiate proceedings for compensation and award of damages against a medical practitioner for medical malpractice. The principles for initiating legal action in a civil court are based on the law of Torts. The word Tort is derived from the Latin term “Tortum”, which means to twist. It therefore includes conduct that is not straightforward of lawful. This branch of law consists of various “torts” or wrongful acts whereby the wrongdoer violates some legal rights vested in another person. A Tort is defined as a civil wrong that is redressable by an action for unliquidated damages and which is other than a mere breach of contract or breach of trust. Thus damages is the most important remedy for a tort.Under civil law claims can also be based under the provisions of the Fatal Accidents Act, 1855 and section 357 of the Code of Criminal Procedure, 1973. The Fatal Accidents Act, 1855 is based on the English Fatal Accidents Act, 1846 with certain modifications to suit the Indian framework. The said Act provides compensation to the family of the deceased for loss occasioned by the death of a person caused by an actionable wrong. The Act has a wide applicability and has been used by the Supreme Court of India to award compensation to the legal heirs of deceased patients (Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godhole AIR 1969 SC 128).
Indian Penal Code, 1860Prior to and even despite enactment of the CPA actions are being initiated under the provisions of the Indian Penal Code, 1860 (“IPC”). The law of medical malpractice has developed around Sections 52, 80, 81, 88, 90, 91, 92, 304-A, 336, 337 and 338 of the IPC in the context of criminal proceedings. The Supreme Court has held that to fasten liability in criminal proceedings the degree of negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings. Thus for civil liability it may be enough for the complainant to prove that the doctor did not exercise reasonable care in accordance with the accepted principles but for convicting a doctor in a criminal case, it must also be proved that this negligence was gross amounting to recklessness (Martin F. D’Souza v. Mohd. Ishfaq (2009) 3 SCC 1).
Monopolies and Restrictive Trade Practices Act, 1969Prior to the enactment of the CPA, the above Act was the only recourse available to consumers against unfair and restrictive trade practices by medical practitioners. However, this Act is now in the process of being repealed and replaced with the Competition Act, 2002. With the enactment of the CPA, the aggrieved consumers have a much more effective remedy available.
Writ Jurisdiction of the High Court and the Supreme Court
Every aggrieved citizen has a constitutional right under articles 226 and 32 of the Constitution of India to approach the High Court or the Supreme Court respectively for redressal of his grievance, provided an appropriate cause of action exists on the basis of which the concerned Court has jurisdiction take up the issue. The Court can award compensatory damages against erring medical institutions and medical practitioners who have failed in their public law duties towards patients. For instance if there is a government organized medical camp for eye surgery for removal of cataract and this subsequently leads to mass blinding of patients after the surgery due to negligence during the conduct of the surgery, the Supreme Court or the High Court will have jurisdiction under article 32 and 226 respectively to adjudicate upon the issue.
Consumer Protection Act, 1986
The enactment of the CPA marks a watershed in consumer litigation in the country. The CPA was enacted in 1986 “to provide for better protection of the interest of consumers”. The CPA has created a time bound and parallel dispute redressal mechanism under which disputes raised by consumers are adjudicated. Under the CPA any person who hires or avails of any service for consideration (and includes any beneficiary of such services) qualifies as a consumer under section 2(d) of the Act. In case the services hired or availed of by a consumer suffer from deficiency in any respect, the consumer can initiate proceedings under the CPA for redressal of his grievances. Due to the simple and easy procedures available the Act has become a potent tool in the hands of consumers dissatisfied with services rendered and goods sold. One of the important and developing areas in the field of consumer law is that of medical malpractice.
With the advent of the CPA almost all cases of medical malpractice have been initiated under its provisions. The landmark judgment of the Supreme Court in the case Indian Medical Association vs. V. P. Shantha (1995) 6 SCC 651 brought the medical profession within the ambit of the CPA. The question before the Supreme Court in this case was whether a medical practitioner can be regarded as rendering a service and whether this service falls under Section 2 of the Consumer Protection Act, 1986. The Court held as under:
That Section 14(1)(d) of the Consumer Protection Act, 1986 indicates that the compensation to be awarded is for loss or injury suffered by the consumer due to the negligence of the opposite party and applies to medical practitioners.
It upheld the principles dealing with the standard of care required from medical practitioners laid down in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582:
o The test is the standard of the ordinary skilled man exercising and professing to have that special skill. It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular article.
Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), 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 Act.
The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.
A ‘contract of personal service’ has to be distinguished from a ‘contact for personal services’. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ‘contract of persona] service’. Such service is service rendered under a ‘contract for personal services’ and is not covered by exclusionary clause of the definition of ‘service’ contained in Section 2(1)(o) of the Act.
The expression ‘contract of personal service’ in Section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ‘service’ as defined in Section 2(1)(o) of the Act.
Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be “service” as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
Service rendered at a non-Government hospital/Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service – is outside the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position.
Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Act.
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 arc rendered service free of charge would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act 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.
Service rendered at a Government hospital/health center/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service – is outside the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
Service rendered at a Government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be “service” and the recipient a “consumer” under the Act.
Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Act.
Similarly, 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 not be free of charge and would constitute ‘service’ under Section 2(1)(o) of the Act.
Another subsequent landmark case is that of Jacob Mathew v. State of Punjab (2005) 6 SCC 1 where the proceedings arose out of a Special Leave to Appeal that was filed before the Supreme Court of India by the petitioner against the orders passed by the High Court of Punjab and Haryana dismissing the petition for quashing of the FIR and subsequent proceedings. It was contended by the complainant that his father, who was admitted in a hospital in Ludhiana, found it difficult to breathe and was attended to subsequently, however, after a substantial gap of time. On the doctor’s arrival it was found that the oxygen cylinder was empty and after some more time a full oxygen cylinder was brought however, there was no arrangement to make the second cylinder functional. Meanwhile, a doctor declared that the patient was dead. An FIR was filed by the Complainant in furtherance of which an offence was registered under Section 304A of the Indian Penal Code. A revision was filed by the Petitioner against the framing of charges against the petitioners which was dismissed. The petitioner preferred a petition for quashing the FIR and the subsequent proceedings.
The Supreme Court exhaustively dealt with the law relating to (i) negligence as a tort (ii) negligence as a tort and as a crime, (iii) negligence by professionals, (iv) medical professionals and criminal law, (v) reviewed Indian judicial precedents on criminal negligence and thereafter reached certain conclusions and framed guidelines regarding prosecuting medical professionals. The Supreme Court applied the Bolam Rule to ascertain whether section 304A IPC was applicable to the facts of the case under consideration. The relevant extracts of the judgment of the Supreme Court which deal with the aforesaid issues is reproduced for a better understanding of the approach of the Court to the above issues:
Negligence as a tort
11. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442) — “Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property…. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.”
12. According to Charles worth & Percy on Negligence (Tenth Edition, 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (Para 1.01) The essential components of negligence, as recognized, are three: “duty”, “breach” and “resulting damage”, that is to say:-
the existence of a duty to take care, which is owed by the defendant to the complainant;
the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. (Para 1.23)
If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (Para 1.24)
Negligence — as a tort and as a crime
13. The term ‘negligence’ is used for the purpose of fastening the defendant with liability under the Civil Law and, at times, under the Criminal Law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence upto the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R. v. Lawrence, [1981] 1 All ER 974 (HL), Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell 1981(1) All ER 961 (HL) and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warded against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being “subjective” or “objective”, and said “Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it.”
14. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill-seeking. These are clearly reckless.
15. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech inAndrews v. Director of Public Prosecutions, [1937] A.C. 576, stated, “Simple lack of care — such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established.” Thus, a clear distinction exists between “simple lack of care” incurring civil liability and “very high degree of negligence” which is required in criminal cases. Lord Porter said in his speech in the same case — “A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. ( & Percy, ibid, Para 1.13)
16. The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka MANU/SC/0275/1979. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where 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.
17. Law laid down by Straight, J. in the case Reg v. Idu Beg (1881) 3 All. 776, has been held good in cases and noticed in Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J. 423 — a three-Judge Bench decision of this Court. It has been held that while negligence is an 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; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
18. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree.
Negligence by professionals
19. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd. , [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charles worth & Percy, ibid, Para 8.03)
20. Oft’ quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair J. in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586 in the following words:
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. 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.” (Charles worth & Percy, ibid, Para 8.02) .
21. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and well-condensed one. After a review of various authorities Bingham L.J. in his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1, 79 summarised the Bolam test in the following words:-
“From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.” (Charles worth & Percy, ibid, Para 8.04)
22. The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England (Fourth Edition, Vol.30, Para 35):-
“The practitioner must bring to his task 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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he 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, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”
Abovesaid three tests, have also been stated as determinative of negligence in professional practice by Charles worth & Percy in their celebrated work on Negligence (ibid, para 8.110)
23. In the opinion of Lord Denning, as expressed in Hucks v. Cole, [1968] 118 New LJ 469, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
24. The decision of House of Lords in Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 (HL) by a Bench consisting of five Law Lords has been accepted as having settled the law on the point by holding that it is not enough to show that there is a body of competent professional opinion which considers that decision of the defendant professional was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper. Lord Scarman who recorded the leading speech with which other four Lords agreed quoted the following words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 at 217, observing that the words cannot be bettered – “In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men…The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care…”. Lord Scarman added – “a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence.” His Lordship further added “that a judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred.”
25. The classical statement of law in Bolam’s case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. 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, when 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. 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.
26. 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. 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. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
27. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
28. Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. Such ingredient cannot be said to have been proved or made out by resorting to the said rule (See Syad Akbar v. State of Karnataka MANU/SC/0275/1979.
Incidentally, it may be noted that in Krishnan and Anr. v. State of Kerala MANU/SC/0106/1997 the Court has observed that there may be a case where the proved facts would themselves speak of sharing of common intention and while making such observation one of the learned judges constituting the Bench has in his concurring opinion merely stated ‘res ipsa loquitur’. Nowhere it has been stated that the rule has applicability in a criminal case and an inference as to an essential ingredient of an offence can be found proved by resorting to the said rule. In our opinion, a case under Section 304A IPC cannot be decided solely by applying the rule of res ipsa loquitur.
29. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
30. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason–whether attributable to himself or not, neither a surgeon can successfully wield his life-saving scalper to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society.
31. The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science — both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.
32. The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. Several relevant considerations in this regard are found mentioned by Alan Merry and Alexander McCall Smith in their work “Errors, Medicine and the Law” (Cambridge University Press, 2001). There is a marked tendency to look for a human actor to blame for an untoward event – a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. To draw a distinction between the blameworthy and the blameless, the notion of mens rea has to be elaborately understood. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor’s contribution is either relatively or completely blameless. Human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how in real life the doctor functions. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine.
33. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are: (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation – the person holding the ‘smoking gun’.
34. Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated (See, Black’s Law Dictionary, 7th Edition). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence.
Medical Professionals in Criminal Law
35. The criminal law has invariably placed the medical professionals on a pedestal different from ordinary mortals. The Indian Penal Code enacted as far back as in the year 1860 sets out a few vocal 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 a person and that person has not consented to suffer such harm. There are four exceptions listed in the Section which is not necessary in this context to deal with. Section 93 saves from criminality certain communications made in good faith. To these provisions are appended the following 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
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.
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.
36. It is interesting to note what Lord Macaulay had himself to say about Indian Penal Code. We are inclined to quote a few excerpts from his speech to the extent relevant for our purpose from “Speeches and Poems with the Report and Notes on the Indian Penal Code” by Lord Macaulay (Houghton, Mifflin and Company, published in 1874).
“Under the provisions of our Code, this case would be very differently dealt with according to circumstances. If A. kills Z. by administering abortive to her, with the knowledge that those abortive are likely to cause her death, he is guilty of voluntary culpable homicide, which will be voluntary culpable homicide by consent, if Z. agreed to run the risk, and murder if Z. did not so agree. If A causes miscarriage to Z., not intending to cause Z’s death, nor thinking it likely that he shall cause Z’s death, but so rashly or negligently as to cause her death, A. is guilty of culpable homicide not voluntary, and will be liable to the punishment provided for the causing of miscarriage, increased by imprisonment for a term not exceeding two years. Lastly, if A took such precautions that there was no reasonable probability that Z’s death would be caused, and if the medicine were rendered deadly by some accident which no human sagacity could have foreseen, or by some peculiarity in Z’s constitution such as there was no ground whatever to expect, A. will be liable to no punishment whatever on account of her death, but will of course be liable to the punishment provided for causing miscarriage.
It may be proper for us to offer some arguments in defence of this part of the Code.
It will be admitted that when an act is in itself innocent, to punish the person who does it because bad consequences, which no human wisdom could have foreseen, have followed from it, would be in the highest degree barbarous and absurd.” (P.419)
“To punish as a murderer every man who, while committing a heinous offence, causes death by pure misadventure, is a course which evidently adds nothing to the security of human life. No man can so conduct himself as to make it absolutely certain that he shall not be so unfortunate as to cause the death of a fellow-creature. The utmost that he can do is to abstain from every thing which is at all likely to cause death. No fear of punishment can make him do more than this; and therefore, to punish a man who has done this can add nothing to the security of human life. The only good effect which such punishment can produce will be to deter people from committing any of those offences which turn into murders what are in themselves mere accidents. It is in fact an addition to the punishment of those offences, and it is an addition made in the very worst way.” (p.421)
“When a person engaged in the commission of an offence causes death by rashness or negligence, but without either intending to cause death, or thinking it likely that he shall cause death, we propose that he shall be liable to the punishment of the offence which he was engaged in committing, superadded to the ordinary punishment of involuntary culpable homicide.
The arguments and illustrations which we have employed for the purpose of showing that the involuntary causing of death, without either rashness or negligence, ought, under no circumstances, to be punished at all, will, with some modifications, which will readily suggest themselves, serve to show that the involuntary causing of death by rashness or negligence, though always punishable, ought, under no circumstances to be punished as murder.” (P.422)
37. The following statement of law on criminal negligence by reference to surgeons, doctors etc. and unskillful treatment contained in Roscoe’s Law of Evidence (Fifteenth Edition) is classic:
“Where a person, acting as a medical man, &c., whether licensed or unlicensed, is so negligent in his treatment of a patient that death results, it is manslaughter if the negligence was so great as to amount to a crime, and whether or not there was such a degree of negligence is a question in each case for the jury. “In explaining to juries the test which they should apply to determine whether the negligence in the particular case amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable,’ ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete.’ But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.” (p. 848-849)
“whether he be licensed or unlicensed, if he display gross ignorance, or gross inattention, or gross rashness, in his treatment, he is criminally responsible. Where a person who, though not educated as an accoucheur, had been in the habit of acting as a man-midwife, and had unskillfully treated a woman who died in childbirth, was indicted for the murder, L. Ellenborough said that there was no evidence of murder, but the jury might convict of man-slaughter. “To substantiate that charge the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the [most?] criminal inattention. One or other of these is necessary to make him guilty of that criminal negligence and misconduct which is essential to make out a case of manslaughter.” (p.849)
A review of Indian decisions on criminal negligence
38. We are inclined to, and we must – as duty bound, take note of some of the relevant decisions of the Privy Council and of this Court. We would like to preface this discussion with the law laid down by the Privy Council in <John Oni Akerele v. The King AIR 1943 PC 72. A duly qualified medical practitioner gave to his patient the injection of Sobita which consisted of sodium bismuth tart rate as given in the British Pharmacopoea. However, what was administered was an overdose of Sobita. The patient died. The doctor was accused of manslaughter, reckless and negligent act. He was convicted. The matter reached in appeal before the House of Lords. Their Lordships quashed the conviction. On a review of judicial opinion and an illuminating discussion on the points which are also relevant before us, what their Lordships have held can be summed up as under:-
That a doctor is not criminally responsible for a patient’s death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State.;
That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation…. There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime.
It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion….The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck.”
(emphasis supplied)
Their Lordships refused to accept the view that criminal negligence was proved merely because a number of persons were made gravely ill after receiving an injection of Sobita from the appellant coupled with a finding that a high degree of care was not exercised. Their Lordships also refused to agree with the thought that merely because too strong a mixture was dispensed once and a number of persons were made gravely ill, a criminal degree of negligence was proved.
39. The question of degree has always been considered as relevant to a distinction between negligence in civil law and negligence in criminal law. In Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra MANU/SC/0093/1964, while dealing with Section 304A of IPC, the following statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap 4 Bom LR 679, was cited with approval:-
“To impose criminal liability under Section 304A, 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 without the intervention of another’s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.”
40. K.N. Wanchoo, J. (as he then was), speaking for the Court, observed that the abovesaid view of the law has been generally followed by High Courts in India and was the correct view to take of the meaning of Section 304A. The same view has been reiterated in Kishan Chand and Anr. v. The State of Haryanav (1970) 3 SCC 904.
41. In Juggankhan v. The State of Madhya Pradesh, the accused, a registered Homoeopath, administered 24 drops of stramonium and a leaf of datur to the patient suffering from guinea worm. The accused had not studied the effect of such substances being administered to a human being. The poisonous contents of the leaf of , were not satisfactorily established by the prosecution. This Court exonerated the accused of the charge under Section 302 IPC. However, on a finding that stramonium and dhatura leaves are poisonous and in no system of medicine, except perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea worm, the act of the accused who prescribed poisonous material without studying their probable effect was held to be a rash and negligent act. It would be seen that the profession of a Homoeopath which the accused claimed to profess did not permit use of the substance administered to the patient. The accused had no knowledge of the effect of such substance being administered and yet he did so. In this background, the inference of the accused being guilty of rash and negligent act was drawn against him. In our opinion, the principle which emerges is that a doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence.
42. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. was a case under Fatal Accidents Act, 1855. It does not make a reference to any other decided case. The duties which a doctor owes to his patients came up for consideration. The Court held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task 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. The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In this case, the death of patient was caused due to shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anaesthetic to the patient. The doctor was held guilty of negligence and liability for damages in civil law. We hasten to add that criminal negligence or liability under criminal law was not an issue before the Court –as it did not arise and hence was not considered.
43. In the year 1996, there are 3 reported decisions available. Indian Medical Association v. V.P. Shantha and Ors. is a three-Judge Bench decision. The principal issue which arose for decision by the Court was whether a medical practitioner renders ‘service’ and can be proceeded against for ‘deficiency in service’ before a forum under the Consumer Protection Act, 1986. The Court dealt with how a ‘profession’ differs from an ‘occupation’ especially in the context of performance of duties and hence the occurrence of negligence. The Court noticed that medical professionals do not enjoy any immunity from being sued in contract or tort (i.e. in civil jurisdiction) on the ground of negligence. However, in the observation made in the context of determining professional liability as distinguished from occupational liability, the Court has referred to authorities, in particular, Jackson & Powell and have so stated the principles, partly quoted from the authorities :-
“In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man’s control. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. (See : Jackson & Powell on Professional Negligence, 3rd Edn., paras 1-04, 1-05, and 1-56).”
44. In Poonam Verma v. Ashwin Patel and Ors. , a doctor registered as medical practitioner and entitled to practice in Homoeopathy only, prescribed an allopathic medicine to the patient. The patient died. The doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband on the ground that the doctor who was entitled to practice in homoeopathy only, was under a statutory duty not to enter the field of any other system of medicine and since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the