Dr. Suresh Vasistha
MBBS, MS, FAIS, FAMS, FIAGES
LLB
Governing Council Member & Jt. Secretary
Association of Surgeons of India
Consultant General and Laparoscopic Surgeon
&
Medico legal Consultant
Mangalam Hospital & Samvit Healthcare,
Gurgaon
Pleader Police
Print &
Electronic
Media Politician
What is Negligence?
“The breach of a duty caused by the omission to do
something, which a reasonable man guided by those
considerations would do, or doing something which a
prudent and reasonable man would not do.”
Three Elements :
1.
Legal duty to exercise due care ;
2. Breach of the said duty;
Basic relevant
facts
Treatment is bound to have risks, complications
& deaths in some cases
Doctor tries his best to attain good results
Medical practice is largely un-regulated
Doctor-patient relationship has changed from
fiduciary to contractual & sometimes exploitation
kind of relationship
Commerce, competition and lust has enhanced
these problems
Basic legal
Principles
Burden of proof lies on the complainant to
prove his allegations
Standard of proof required in medical
negligence cases is higher than in other
cases
Medical expert evidence is necessary to
prove medical negligence
Criminal medical negligence means „gross‟
How do the courts
decide medical
negligence ?
What does a prudent patient expect under
similar circumstances (prudent patient test)
What does a prudent doctor do (or does not do)
under similar circumstances (prudent doctor
test)
Indian courts usually follow the „prudent doctor‟
principle
Prudent doctor
(Bolam
’
s test)
Courts basically evaluate whether you had
treated the patient prudently, in the
manner acceptable by a credible body of
medical opinion
Negligence is defined as
Reasonable degree
The measure is the standard of an
average doctor rather than the best or the
most perfect one, under the circumstances
BOLAM v. FRIERN HOSPITAL
MANAGEMENT COMMITTEE (1957) 2
All ER).
Fact of the Case :
John Hector Bolam suffered from depression and was
treated at the Friern Hospital in 1954 by E.C.T.
(electro-convulsive therapy). He was not given any relaxant drug,
however, nurses were present on either side of the couch
to prevent him from falling off.
When he consented for the treatment, the hospital did not
warm him of the risks, particularly that he would be given
the treatment without relaxant drugs.
He sustained fractures during the treatment and sued
the hospital and claimed damages for negligence.
Experts opined that there were two practices accepted
by them: treatment with relaxant drugs and treatment
without relaxant drugs.
Regarding the warning also, there were two practices
prevalent: to give the warning to the patients and also to
give the warning only when the patients ask about the
risks.
The court concluded that the doctors and the hospital
Legal Position- Bolam Test:
In the leading case BOLAM v. FRIERN HOSPITAL
MANAGEMENT COMMITTEE (1957) 2 All ER). :
“It is sufficient if doctor exercises the ordinary
skill of an ordinary competent man exercising that
particular art. The practitioner must bring to his
task a reasonable degree of skill and knowledge,
and must exercise a reasonable degree of care.”
In the case of medical man, negligence
means
failure to act in accordance with the
standards that reasonably competent medical
man would have applied at that time.
A doctor is not guilty of negligence
if he has
acted in accordance with a practice accepted as
proper by a credible body of medical man skilled
in that particular art.
Civil or Criminal Liability
Dr. Suresh Gupta vs Government of N.C.T. of
Delhi and Anr.
2004 CrilLJ 3870
Civil Liability :
Whenever a patient dies due to medical negligence,
the doctor is liable In civil law for paying the
compensation.
Criminal Liability :
Only when the negligence is so gross and doctors act
is so reckless as to endanger the life of the patient, can
attract criminal law for offence.
Medical Negligence with Criminal
Liability :
Criminal liability of a physician may result from a high degree of
negligent conduct.
Indian Penal Code, 1860 -sections 52, 80, 81, 88, 90, 91, 92, 304A,
337 and 338 can be applicable for the medical malpractice in India.
When FIR is filed against a doctor for the death of patient - this
Indian Penal Code Section 304A - the doctor can be arrested.
If proved guilty, the doctor can be punished with a maximum of 2
years imprisonment or fine or both.
But if the patient is alive, the doctor is charged under the Indian
Medical
negligence
If you have done what is not done or not
done which is generally done, by
an average prudent doctor with similar
qualifications, experience and facilities,
under similar circumstances,
you are said to have committed medical
negligence
What is not
negligence
Occurrence of a complication / death
Difference of opinion
Error of judgment
Medical accidents
Choosing one of several acceptable options
Failure of result
Refusing to treat a patient (except
providing first aid in an emergency)
Case law on therapeutic privilege
Dr Thomas v Smt. Elisa, AIR 1987
The patient presented with life threatening peritonitis
following a perforated appendix. Patient was not in a
position to give consent and no relative was available.
He died as the doctor failed to operate, for want of
consent. The doctor was held guilty of negligence for not
operating on a patient with life - threatening peritonitis.
The court held that it is the doctor
’
s ethical and legal
duty to treat the patient to best of his ability and the
lack of valid consent is not a constraint in
life-threatening situations.
This view was reiterated by the Supreme
Landmark case
Decided On: 05.08.2005
Appellants:
Jacob Mathew
Vs.
Respondent:
State of Punjab and Anr.
Hon'ble Judges:
R.C. Lahoti, C.J., G.P. Mathur and P.K.
Balasubramanyan, JJ.
Guidelines - re: prosecuting medical
professionals
A private complaint may not be entertained unless
the complainant has produced prima facie
evidence before the Court in the form of a credible
opinion given by another competent doctor to
support the charge of rashness or negligence on
the part of the accused doctor.
The investigating officer should, before proceeding
against the doctor accused of rash or negligent act
or omission, obtain an independent and
competent medical opinion preferably from a
doctor in government service qualified in that
branch of medical practice who can normally be
expected to give an impartial and unbiased
opinion applying
Bolam's test
to the facts
collected in the investigation.
A doctor accused of rashness or negligence,
may not be arrested in a routine manner
(simply because a charge has been leveled
against him). Unless his arrest is necessary
for furthering the investigation or for
collecting evidence or unless the
investigation officer feels satisfied that the
doctor proceeded against would not make
himself available to face the prosecution
unless arrested, the arrest may be withheld.
Guidelines Cont…
Landmark Case
IN THE SUPREME COURT OF INDIA
CIVIL APPEAL NO. 3541 OF 2002
Martin F. D'Souza .. Appellant
-versus-Mohd. Ishfaq .. Respondent MARKANDEY KATJU, J.
Para 111
We have carefully pursued the judgment of the National
Commission and we regret that we are unable to concur
with the views expressed therein. The Commission,
which consists of laymen in the field of medicine, has
sought to substitute its own views over that of medical
experts, and has practically acted as super-specialists in
medicine.
Moreover, it has practically brushed aside
the evidence of Dr. Ghosh, whose opinion was sought on
its own direction, as well as the affidavits of several
other doctors (referred to above) who have stated that
the appellant acted correctly in the situation he was
faced.
Para 112
The Commission should have realized that
different doctors have different
approaches, for instance, some have more
radical while some have more
conservative approaches. All doctors
cannot be fitted into a straight-jacketed
formula, and cannot be penalized for
Para 117
We, therefore, direct that whenever a complaint is received
against a doctor or hospital by the Consumer Fora
(whether District, State or National) or by the Criminal
Court then
before issuing notice to the doctor or
hospital
against whom the complaint was made the
Consumer Forum or Criminal Court
should first refer
the matter to a competent doctor or committee of
doctors, specialized in the field relating to which
the medical negligence is attributed, and only
after that doctor or committee reports that there
is a prima facie case of medical negligence should
notice be then issued to the concerned
Para 117…
This is necessary to avoid harassment to
doctors who may not be ultimately found
to be negligent.
We further warn the police officials not to
arrest or harass doctors unless the facts
clearly come within the parameters laid
down in Jacob Mathew's case (supra),
otherwise the policemen will themselves
have to face legal action.
Para 123
The courts and Consumer Fora are not experts in
medical science, and must not substitute their
own views over that of specialists.
It is true that the medical profession has to an
extent become commercialized and there are
many doctors who depart from their Hippocratic
oath for their selfish ends of making money.
However, the entire medical fraternity cannot be
blamed or branded as lacking in integrity or
Para 124
It must be remembered that sometimes
despite their best efforts the treatment
of a doctor fails. For instance,
sometimes despite the best effort of a
surgeon, the patient dies. That does not
mean that the doctor or the surgeon
must be held to be guilty of medical
negligence, unless there is some strong
evidence to suggest that he is.
Judgment dated March 8, 2010, in the case
of V Kishan Rao v/s Nikhil Super Speciality
Hospital & Anr.
The Supreme Court has now held that this judgment
of Martin F D'Souza does not correctly lay down the
law and it is not necessary to refer each and every
case routinely and blindly for expert opinion.
The jurisprudential and conceptual difference of
negligence in civil and criminal matters, made it
necessary to have an expert opinion in case of criminal
prosecution only, and not for civil disputes
Res ipsa loquitur
Respondent superior
Causation
Vicarious Liability
Contributory Negligence
Corporate Negligence
Product Liability
Novus actus intervenience
Sishir Ranjan Saha v. State of Tripura;
Guwahati High court decided on 6
thApril,
2002.
Facts: The victim of the road accident was brought to a hospital. He needed major surgery. The specialist doctor was not available as he was busy attending to the other patients and did not respond to the call of emergency. The victim filed a suit in the court claiming compensation.
Issue: whether the doctor was liable for not attending to the victim.
Judgment: the court held that the doctor was liable for not attending the emergency patient in time especially after claiming to provide emergency services. It ordered the defendant to pay a compensation
Sridevi’s mother vs Sloan- Kettering
Hospital New York.
Fact : Mrs. Rajeshwari Ayyappan, mother of the film star Sridevi, underwent surgery for an intracranial tumor.
An Israeli surgeon practicing in USA operating on Sridevi‟s mother tried to operate on the wrong lobe (the brain has two lobes –left and right). The neurosurgeon at Sloan-Kettering Hospital operated on the wrong side of the brain. The x-ray report had got mixed up with somebody else‟s x-ray reports whose report showed the other lobe.
Her mother died; case filed for negligence and Sridevi got 25 million Dollars as compensation.
Tarun kumar Pramanik vs. Dr. Kunal Chakraborty
& Ors. (1995 (2) CPR 545)
Fact : the Complainant alleged that during the operation for left inguinal hernia, his left testis was removed negligently and without consent. On account of this patient suffered and has become
handicapped.
On the basis of evidence placed on record, and on the basis of opinion of expert witness it was held that removal of testis was done to avoid gangrenous infection, operation was done with reasonable care and skill and had not resulted in any handicap.
Judgment : Court held that Complaint filed by the complainant is frivolous complaint and complainant held liable to pay the cost to the doctor.
Shubh Lata vs Christian Medical college
(Punjab SCDRC o.s. no. 14 of 1994 decided
on 15.06.1994)
Fact : complainant alleged that her husband died due to the
complications arising after kidney biopsy. The state commission held that the complainant had suppressed the crucial facts in her complaint. Besides serious life threatening diseases, the deceased was already suffering from TB and serious infection of the body by bacteria. This are very serious diseases with a very high mortality rate especially when the heart, lung and brain got infected.
Judgment : Court held that the complainant had not come with clean hands and thus disentitled herself to relief under this jurisdiction of the consumer forum. Complaint dismissed with Rs. 1,500/- cost.