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(1)

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

(2)
(3)

Pleader Police

Print &

Electronic

Media Politician

(4)

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;

(5)

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

(6)

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‟

(7)

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

(8)

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

(9)

Reasonable degree

The measure is the standard of an

average doctor rather than the best or the

most perfect one, under the circumstances

(10)

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.

(11)

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

(12)

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.”

(13)

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.

(14)
(15)

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.

(16)

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

(17)

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

(18)

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)

(19)

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

(20)

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.

(21)

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.

(22)

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…

(23)

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.

(24)

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.

(25)

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

(26)

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

(27)

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.

(28)

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

(29)

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.

(30)

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

(31)

Res ipsa loquitur

Respondent superior

Causation

Vicarious Liability

Contributory Negligence

Corporate Negligence

Product Liability

Novus actus intervenience

(32)

Sishir Ranjan Saha v. State of Tripura;

Guwahati High court decided on 6

th

April,

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

(33)

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.

(34)

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.

(35)

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.

(36)

References

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