JUDICIAL INTERPRETATION OF MEDICAL NEGLIGENCE LIABILITY & NEGLIGENCE OF SERVICE under Section 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 & 338 IPC provisions & Legal Remedies available for Compensatory Action

Medical malpractice is the negligence in the profession of health management where the patient is given low standard treatment than the expected one, may be because of the act of omission or mere negligence on part of the medical representative. The entire minor to major complexities may be hooked under the medical malpractice. It involves harm to the patient by the doctor who declines executing their duty accurately. Such hazardous medical malpractice alters extensively with the aspect of medicine. It implicates chronic agitation for the patient’s safety. In such cases the medical representative is legally responsible for the harm or injuries caused to the patient. Lately with the flourishing perception in patient’s rights, the redressal claims for injury by medical negligence are being noticeable. Malpractice claims prevails for such medical negligence cases causing injury to the patient. Subsequent to the execution of Consumer Protection Act, plenty of the doctors were sued for the purpose of medical negligence by the patients. But the medical representative is not directly liable to the patient instead he/she is legally responsible for such act of medical malpractice. Section 304A of Indian penal code, 1860 illustrates the punishment for causing death by negligence other than culpable homicide.

Indian society is experiencing a growing awareness regarding patient's rights. This trend is clearly discernible from the recent spurt in litigation concerning medical professional or establishment liability, claiming redressal for the suffering caused due to medical negligence, vitiated consent, and breach of confidentiality arising out of the doctor-patient relationship. The patient centered initiative of rights protection is required to be appreciated in the economic context of the rapid decline of Stat spending and massive private investment in the sphere of the health care system and the Indian Supreme Court's painstaking efforts to constitutionalize a right to health as a fundamental right. As of now, the adjudicating process with regard to medical professional liability, be it in a consumer forum or a regular civil or criminal court, considers common law principles relating to negligence, vitiated consent, and breach of confidentiality. However, it is equally essential to note that the protection of patient's right shall not be at the cost of professional integrity and autonomy. There is definitely a need for striking a delicate balance. Otherwise, the consequences would be inexplicable. In the context of obtaining processes, there is a deserving need for a two-pronged approach. On one hand, the desirable direction points towards identification of minimum reasonable standards in light of the social, economical, and cultural context that would facilitate the adjudicators to decide issues of professional liability on an objective basis. On the other hand, such identification enables the medical professionals to internalize such standards in their day-to-day discharge of professional duties, which would hopefully prevent to a large extent the scenario of protection of patient's rights in a litigative atmosphere. In the long run, the present adversarial placement of doctor and the patient would undergo a transformation to the advantage of the patient, doctor, and society at large. “Gross Lack of competency or gross inattention, or wanton indifference to the patient’s safety, which may arise from gross ignorance of the science of medicine and surgery or through gross negligence, either in the application and selection of remedies, lack of proper skill in the use of instruments and failure to give proper attention to the patient.” (Hampton v State; State v Lester)

When Does The Liability Arise In Case Of Medical Negligence?

The liability of a doctor arises not when the patient suffers injury but when the injury results due to the conduct of the doctor, which was below reasonable care. Hence once there exist a duty which has to be established by the patient, then the next step is to prove breach of such duty and the causation. Normally the liability arises only when the plaintiff is able to discharge the burden on him of proving negligence. However, in some cases the principle of “res ipsa loquitor” which means the thing speaks for it might come into action. Mostly the doctor is liable only for his own acts. However in some cases a doctor can also be made vicariously liable for the acts of another. The example of such a situation is when a junior doctor assisting the senior doctor commits a mistake it becomes the duty of the senior to have supervised him hence vicariously liable.

Proof of Medical Negligence

It has been held in different judgments by the National Commission and 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 correspondingly greater on the person who alleges negligence against a doctor. It is known fact that things can go wrong even wit the best doctor. And the guilt or the negligence should be established beyond all reasonable doubts that his skill fell below reasonable care that he ought to take during the treatment/ surgery.

Steps/ Procedure to File Complaint Pertaining To Medical Negligence

Medicine is a noble profession and practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise 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 that the law requires.

1. Damage to organ due to negligence.

2. Wrong treatment due to wrong diagnosis.

3. Money receipt or prescription or discharge summary or test reports when not provided.

4. When treatment not chosen as accepted and established in medical norms /as per medical research/available medical literature.

5. Theory of res ipsa loquitur [a thing speaks of itself] – in case any instrument left in the body, a wrong part removed, allopathic treatment given by a homeopathic doctor etc.

6. Govt Hospital liable if contribution from the employee’s salary deducted OR Payment made by insurance company.

7. Negligent if three steps necessary are not observed by the medical practitioners. First – To decide whether he has to take up the case or not: Third- Whether the treatment given as per the diagnosis made.

8. Hospital can also be negligent if ‘it is a case of non- availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. (As according to the National Consumer Helpline

What is a complaint?

A complaint is an allegation in writing made by a Complainant someone who has suffered loss or damage as a result of any deficiency of service.

Section 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 IPC provisions

Causing death by negligence —whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

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.

NEGLIGENCE BY MEDICAL PRACTITIONERS

Negligence is the breach of a legal duty to care caused by omission of doing something which a reasonable manner in an ordinary course would do or doing something which a prudent man would not do. Prima facie means carelessness in a matter in which the law mandates carefulness resulting into harm and injury to the other. Thus, what construes the essential ingredient of negligence is legal duty, breach and inflicted harm or damage. Such negligence if caused by the medical practitioners, be it a doctor or its staff would amount to medical negligence.

“The prime object of medical professional is to render service to humanity; reward or financial gain is a subordinate consideration…

”Nowadays, a lot medical negligence cases are being reported in India thereby distorting the bondage of trust between the doctor and a patient. Medical Practitioners such as doctors are expected to have skill and knowledge to render medical care with reasonableness and caution. “The doctor has discretion in choosing treatment, which he proposes to give to the patient and such discretion is relatively greater in cases of ‘emergency’.

However, no person is perfect be it a renowned specialist. A doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care. An error of judgement constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care, would not have made the same error.

COMPONENTS OF MEDICAL NEGLIGENCE

A negligent act comprises of three main components:

1. There should be existence of legal duty towards the patient

2. Breach of the legal duty

3. Damage caused to the patient

Existence of legal duty: Apperson approaches to the medical practitioners with a trust that that he warrants that skills and special knowledge which is required for cure the problem. It is not always for the patient to enter into a written contract with them. There is implied contract between the practitioners and the patient, thus erring by the doctor makes him/her liable for breach of professional duty. It is the legal duty of the medical practitioner to exercise all due diligence as is expected in ordinary course from his contemporaries Failure on the part of doctor to exercise reasonable care and caution which was incumbent so, would amounts to negligence.

Now the main issue is what construes ‘Reasonable care’ by the doctors? The Indian judiciary through its various ruling same submitted the major aspect of ‘Reasonable care’ by the doctors. In the case of Dr. Laxman Balkrishna Joshi v. Dr.Trimbark Babu Godbole and Anr.,it has been laid down that: “When a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment”. ‘Reasonable’ care means exercise of that degree of care and skill which could be expected of a normal, prudent practitioner of the same professional experience. In addition, negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. But if he falls below the reasonable standard of care and caution which must be needed while treating their patients, then the doctors are said to be liable for medical negligence which is a professional negligence.

Breach of legal duty: There is certainly the breach of legal duty if the doctor does not exercise the reasonable care as expected by him/her. But when it comes to the failure in exercising and caution, such caution is to be judged at par with what the ordinary experience of doctor has found to be sufficient. So also, while analyzing the standard of care, circumscribing situation and knowledge of the doctor at time of incident is taken into consideration. Such standards are not expected to be of very high degree or otherwise, but what is expected from man in the ordinary course of treatment.

Damages caused by the breach: The injury which is suffered due to negligent act of medical practitioners is liable to get compensated either under Civil Law or Criminal Law. Both the remedy is available but not every negligent act imposes liability. The degree of negligence is to be determined by the court before such imposition. At various situations, the victim can invoke the principle ofres ispa loquituror “the thing speaks for itself” where no proof of negligence is required, the accident is itself sufficient. This principle is applied by the hon’ble he National Consumer Disputes Redressal Commission in Dr Janak Kantimathi Nathan v. Murlidhar Eknath Masane.

LIABILITY ON DOCTORS

A doctor is not necessarily liable in every case where injury is reported by the patient. It is scientifically proved every individuals body is subjected to various variation in health, which can arise anytime. It is unforeseeable for a doctor too. Therefore, the doctors cannot be held liable for the death of patients which occurs due to ‘unforseeability’ of their condition. It is argued that it will be doing disservice to the community at large if the court were to impose liability on doctors and hospitals for everything that happens to go wrong. In Dr. Ganesh Prasad and Anr.v. Lal Janamajay Nath Shahdeo, 11th National Commission reiterated the principle that: ‘Where proper treatment is given, death occurring due to process of disease and its complication, it cannot be held that doctors and hospitals are negligent and orders of lower fora do not uphold the claim and award compensation’. In this case, a four-and-a-half-year-old child suffering from cerebral malaria was admitted to the hospital. A life-saving injection was given. As opined by the child specialist, doses were safe and the treatment was proper. Though the death of the child is unfortunate, Negligence cannot be attributed to the doctor. Error of judgment resulting into death of a person can impose liability if it is error of judgment due to negligence not a mere error of judgement. The courts recognized the later one as not being the kind of a breach of the duty of care. At the time when the decision made, it does not seem wrong. It is only the due consideration of all precautions needed while taking the decisions to escape liability if some wrong happens or injury is caused to a person while exercising that decision.

REMEDIES AVAILABLE TO THE PATIENTS

Patient who is the sufferer from the negligent act of the doctors can seek remedy under various laws:

Compensatory action involving complaint against doctors, staff or hospital whether private or government hospitals who committed negligence seeking monetary compensation before Civil Court under law of Torts or Law of Contract, High Court under theconstitutional law, or Consumer Courts under Consumer Protection Act (Individual liability and Institutional or hospital liability)

Punitive action involving criminal complaint under Indian Penal Code against the doctor.

Disciplinary action which involves Complaint seeking disciplinary action against the medical practitioner or the hospitals as the case may be, before statutory bodies governing the medical practitioners such as Indian Medical Council or State Medical Council.

Recommendatory action involves lodging of complaint before the National/State Human Rights Commission seeking compensation.

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.

COMPENSATORY ACTION

ACTION UNDER LAW OF TORTS

Law of torts circumscribes the principle to compensate the victim for the injury or loss suffered by him. Since it is in the nature of civil proceeding a civil court has to be approached to seek the remedy. Under the law of torts action for medical malpractice lies in the civil court where the burden of proof is high and adheres to the strict proof of evidence. Mere complying with the requirements like duty of care, breach of duty and damages will not sufficient to find the defendant doctor being guilty of negligence. The issue of negligence should be proved by the plaintiff with the cogent evidence of medical expert and medical records.

ACTION UNDER LAW OF CONTRACTS

The scope of liability of the health professional for the breach contractual is very limited in comparing with law of torts. Whenever a patient approaches a private health professional for medical care, the relationship between the hospital and the patient is one of contractual in nature. The civil suit under law of contract is not maintainable unless the plaintiff proves that he availed of service of the defendant health carer for consideration and thus a contractual obligation exists between the patient and the doctor No suit can be brought in the civil court for remedies under the law of contract without hiring the service for

REMEDY UNDER CONSUMER PROTECTION ACT, 1986

A consumer that has suffered loss or damage as a result of any deficiency of service can file a complaint under Consumer Protection Act, (hereinafter referred as Act), 1986. The Act ensures that the aggrieved consumer should be provided with remedy through its three tier quasi-judicial bodies: – District forum, State Commission and National Commission.

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.

PATIENT AS A CONSUMER

In order to file complaint against the medical practitioner under the ambit of Consumer Protection Act 1986, the patient should justify with the definition of ‘consumer,’ which includes a person who have hired or availed of any services for a consideration. The element of consideration serves as a test to determine whether a patient is a consumer or not.

1. A) the service must be hired by him;

2. B) The service should have been rendered to him;

3. C) For hiring service, he must have paid or promised to pay consideration 153.

If services are rendered free of charge, it cannot be hire. If a patient gets free medical treatment in a governmental hospital or in any charitable hospital, without payment, is not a ‘consumer.’

MEDICAL SERVICES COVERED BY SEC 2(1) (I) OF THE CONSUMER PROTECTION ACT

To initiate action against medical practitioner under the said Act, the services rendered by medical practitioner, hospital or nursing home should fall within services the definition of service under section 2(1)(i) of the Act. The expression ‘service’ has been defined as meaning “service of any description which is made available to potential users.” In IMA v. V.P. Shantha and others, the Supreme Court of India observed that the medical services rendered by the medical practitioners are covered by Sec. 2 (1) (i) of the Act. It excludes free services or services under a contract of personal service.

REMEDY UNDER CONSTITUTION OF INDIA

Per se the Constitution of India does not guarantee any special rights to the patient. However, the same can be interpreted under widest interpretation to the Article 21 of the Constitution of India which guarantees right to health and medical treatment. The right to life would be meaningless unless medical care is assured to a sick person. Article19(1) provides six fundamental freedoms to all its citizens which can be restricted only on grounds mentioned in Clauses (2) to (6) of Article 19 of the Constitution. These fundamental freedoms can be effectively enjoyed only if a person has healthy life to live with dignity and free from any kind of disease or exploitation which further ensured by the mandate of Article 21 of the Constitution. When breach of this right occurs, the health care provider will be held liable for negligence.

JUSTICE DELIVERY SYSTEM UNDER CONSTITUTION OF INDIA

PUNITIVE REMEDY

HIERARCHY OF CRIMINAL JUSTICE SYSTEM IN INDIA

CRIMINAL NEGLIGENCE UNDER SECTION 304 -A of INDIAN PENAL CODE

To impose criminal liability under Section 304-A of 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 the act must be the proximate and efficient cause without the intervention of another’s negligence. It must be the causa causans (immediate or operating cause); it is not enough that it may have been the causa sine qua non (a necessary or inevitable cause). That is to say, there must be a direct nexus between the death of a person and rash or negligent act of the accused. The doing of a rash or negligent act, which causes death, is the essence of Section 304-A. There is distinction between a rash act and a negligent act. ‘Rashness’ means an act done with the consciousness of a risk that evil consequences will follow. (It is an act done with the knowledge that evil consequence will follow but with the hope that it will not). A rash act implies an act done by a person with recklessness or indifference as to its consequences. A negligent act refers to an act done by a person without taking sufficient precaution or reasonable precautions to avoid its probable mischievous or illegal consequences. It implies an omission to do something, which a reasonable man, in the given circumstances, would not do. Rashness is a higher degree of negligence. The rashness or negligence must be of such nature so as to be termed as a criminal act of negligence or rashness. Criminal rashness is resulting into a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. 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.

RASH OR NEGLIGENT ACT IN MEDICAL TREATMENT

A doctor can be punished under Section 304A of the Indian Penal Code (IPC) for causing death by arash or negligent act, say in a case where death of a patient is caused during operation by a doctor not qualified to operate. According to a recent Supreme Court decision, the standard of negligencerequired to be proved against a doctor in cases of criminal negligence under Section 304A of the IPC should be so high that it can be described as ‘gross negligence’ or ‘recklessness’, not merely lack ofnecessary care. Criminal liability will not be attracted if the patient dies due to error in judgment or accident. Every civil negligence is not criminal negligence, and for civil negligence to become criminal it should be of such a nature that it could be termed as gross negligence. A doctor is not criminally liable for patient’s death, unless his negligence or incompetence passes beyond a mere matter of competence and shows such a disregard for life and safety, as to amount to a crime against the state.

DEGREE OF NEGLIGENCE

To prosecute a medical professional for negligence under criminal law, it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. 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 nature which likely may cause harm. Hon’ble SC has held that “negligence in the context of medical profession necessarily called for a treatment with a difference, the negligence attributed to the doctor must be gross in nature to make him liable for criminal prosecution” such a degree that injury was most likely imminent.

Dr. Suresh Gupta’s Case – Supreme Court of India, 2004 – the court held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was liable in civil law for paying the compensation. Only when the negligence was so gross and his act was so reckless as to endanger the life of the patient, criminal law for offence under section 304A of Indian Penal Code, 1860 will apply.

DISCIPLINARY ACTION

COMPLAINT BEFORE MEDICAL COUNCIL OF INDIA

The Medical council of India grants recognition to medical degrees granted by universities or medical institutions in India and such other qualifications granted by medical institutions in foreign countries. It lays down and prescribes the minimum standards of medical education required for granting recognition to the degrees awarded by Universities in India. Furthermore, the Council is empowered to have disciplinary control over the medical practitioners including the power to remove the names of medical practitioners permanently or for a specific period from the medical registers when after due inquiry they are found to have been guilty of serious professional misconduct.

GROUNDS TO INITIATE DISCIPLINARY ACTION AGAINST MEDICAL PRACTITIONER

It includes:

• Conviction of any offence by a court of law and

• Guilty of professional misconduct.

Any conduct of the practitioner which brings in disgraceful to the professional status what is known as “serious professional misconduct,” for e.g. adultery or improper conduct or association with a patient, conviction by a court of law for offences involving moral turpitude, issuing false certificates, reports and other documents; issuing certificate of efficiency in modern medicine to unqualified person or non-medical person; performing an abortion or illegal operation for which there is no medical, surgical indication, revealing identity of a patient without his permission; performing an operation which results in sterility, without obtaining the written consent of patient/relative and refusing on religious grounds alone to extend medical assistance etc. If anyone is found guilty of offences mentioned in the warning notice issued by the appropriate medical council, it constitutes serious “professional misconduct”.

COMPLAINT BEFORE HUMAN RIGHT COMMISSIONS

Irrespective of different remedies medical negligence and medical malpractice discussed above, there is yet an alternative mechanism for the protection of patients’ rights under National and State Humans Rights Commission (NHRC and SHRC). Each patient irrespective of its caste, creed, religion, economic status enjoys various Human Rights including Right to Life. Human Right Commissions at national and state level protects are guardian of these rights. For instance, NHRC/SHRC can hold the state accountable for violation of human rights of patients. NHRC can play vital role in fulfilment of national and international human rights norms. Patient can file complaints regarding violation of human rights before NHRC/SHRC as the case may be. NHRC/SHRC then seeks explanations from the government for such violations and can also initiate proceedings including independent investigation, issuance of summons to witness, examination on oath etc. Thus, NHRC/SHRC is endowed with the powers of a Civil Court. It persuades the state to pay compensation to the victims, patients in present case and also recommends for the grants of immediate interim relief to the victim or his / her family.

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 theperson 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.[3]

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.

What is 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.

MEDICAL NEGLIGENCE - DEFINITIONAL ASPECTS

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.

Overview of Consequences

The consequences of legally cognizable medical negligence can broadly be put into three categories:2 (i) Criminal liability, (ii) monetary liability, and (iii) disciplinary action. Criminal liability can be fastened pursuant to the provisions of the Indian Penal Code, 1860 (“IPC”), which are general in nature and do not provide specifically for “medical negligence.” For instance, Section 304A of IPC3 (which deals with the death of a person by any rash or negligent act and leads to imprisonment up to 2 years) is used to deal with both cases of accidents caused due to rash and negligent motor vehicle driving and also medical negligence leading to the death of a patient. Similarly, other general provisions of IPC, such as Section 3374 (causing hurt) and 3385 (causing grievous hurt), are also often deployed in relation to medical negligence cases. Civil liability, i.e., monetary compensation can be fastened under the general law by pursuing a remedy before appropriate civil court or consumer forums. An action seeking imposition of the civil liability on the erring medical professional is initiated by dependents of the deceased patient or by the patient himself (if alive) to seek compensation. Doors of permanent lok adalats, constituted pursuant to the Legal Services Authority Act, 1987, can also be knocked at by a complainant seeking relief in the relation to services “in a hospital or dispensary” which are considered to be “public utility services” within the meaning thereof, wherein first a conciliation is attempted and thereafter determination on merits of the matter is made. Permanent lok adalats are conferred powers akin to that of a civil court in specified matters (such as summoning and enforcing the attendance of witnesses) and have jurisdiction in the matters up to Rs. 1 Crore.6 Another consequence of medical negligence could be in the form of imposition of penalties pursuant to disciplinary action. Professional misconduct by medical practitioners is governed by the Indian Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, made under IMC Act, 1956.7 Medical Council of India (MCI) and the appropriate State Medical Councils are empowered to take disciplinary action whereby the name of the practitioner could be removed forever or be suspended. Professional misconduct is, however, a broad term which may or may not include medical negligence within its fold. For instance, in the context of lawyers, it is not only a professional misconduct but other misconduct also which may lead to imposition of disciplinary penalties, for example, violation of prohibition on liquor under Bombay Prohibition Act, 1949, by the advocate;8 and perhaps a corollary may be extended for cases of medical negligence by medical professionals.

Basic Features of Medical Negligence and Standard of Care

To comprehend the scope of negligence, it is important to understand the scope of the duty imposed on a doctor or medical practitioner. A doctor or other medical practitioner, among others, has a duty of care in deciding whether to undertake the case or not, duty in deciding what treatment to give, duty of care in administration of that treatment, duty not to undertake any procedure beyond his or her control, and it is expected that the practitioner will bring a reasonable degree of skill and knowledge and will exercise a reasonable degree of care.9

Negligence, simply put, is a breach of duty of care resulting in injury or damage.

The causal relationship between breach and injury is a must for fastening the liability of negligence, and such cause must be “direct” or “proximate.”10 It is important to note that the test is an “or” one, and therefore the casual link can be either direct causation or proximate causation, and in both cases, negligence can be ascribed. For instance, where a patient with about 50% burns died 40 days after the date of a wrong blood type transfusion in spite of receiving substantial care thereafter postdetection of error; the finding of medical negligence could not be escaped as the causal relation between the transfusion of wrong blood type and death was proximate.11

The line between civil liability and criminal liability is thin, and no sufficiently good criteria have yet been devised by the Supreme Court providing any clear and lucid guidance. The Supreme Court in Dr. Suresh Gupta v. Govt. of NCT Delhi12 put the standard for fastening criminal liability on a high pedestal and required the medical negligence to be “gross” or “reckless.” Mere lack of necessary care, attention, or skill was observed to be insufficient to hold one criminally liable for negligence. It was observed in Dr. Suresh Gupta that mere inadvertence or simply a want of a certain degree of care might create civil liability but will not be sufficient to attract criminal liability. In this case, a young man was stated to have died during the simple procedure for nasal deformity for “not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage,” and the prosecution under Section 304A IPC was quashed by the Supreme Court setting aside the order of the High Court which had declined to quash the prosecution. The soundness of the view of the Supreme Court was subsequently doubted considering that word “gross” is absent in Section 304A IPC and that different standards cannot be applied for actions of the negligence of doctors and others. Consequently, the matter was placed for reconsideration before a bench of higher strength.13

Three-judge bench (bench strength in Dr. Suresh Gupta was two) in Jacob Mathew v. State of Punjab14 on a reconsideration endorsed the approach of high degree of negligence being the prerequisite for fastening criminal liability as adopted in Dr. Suresh Gupta, and it was observed that”[i] n 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.” Supreme Court in Jacob Mathew observed that the subject of negligence in the context of medical profession necessarily calls for a treatment with a difference. In this case, an aged patient in an advanced stage of terminal cancer was experiencing breathing difficulties and the oxygen cylinder connected to the mouth of the patient was found to be empty. By the time replacement could be made, the patient had died. Supreme Court set aside the judgment of the High Court and held that the doctors could not be criminally prosecuted. It would not be surprising if different benches of the Supreme Court in the above facts were to arrive at different conclusions. High Courts in both of the above cases, i.e., Dr. Suresh Gupta and Jacob Mathew surely held views different from that of the Supreme Court. The abstract principles sometimes do pose difficulty in their application to facts, much like in the practice of medicine. The criminal liability and civil liability are not exclusive remedies and for the same negligence, both actions may be available.

“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,”15 as the standard of care from a doctor. It has been held by the courts that in the cases of medical negligence, Bolam test is to be applied, i.e., “standard of the ordinary skilled man exercising and professing to have that special skill,” and not of “the highest expert skill.”16 This is applicable to both “diagnosis” and “treatment.” It is noted that the Supreme Court has now observed the need to reconsider the parameters set down in Bolam test.17

Errors of judgment do not necessarily imply negligence.18 Gross mistakes would, however, invite the finding of negligence such as use of wrong drug or wrong gas during the course of anesthetic process, delegation of the responsibility to a junior with the knowledge that the junior is incapable of performing the duties properly, removal of the wrong limb, performing an operation on the wrong patient or injecting a drug which the patient is allergic to without looking at the outpatient card containing the warning, and leaving swabs or other items inside the patients.19 Persons not qualified in general or a certain branch of medicine yet embarking upon a treatment course in that field has been held to be negligent.20 Not taking care of a premature baby who is given supplemental oxygen and blood transfusion for prevention of a disease called retinopathy of prematurity (which such premature children are highly prone to and which makes them blind progressively), and not seeking views of pediatric ophthalmologist, has been held to be an incidence of negligence.21 Instances of senior doctor deciding to do a surgery but actually taking up another surgery at the same time and leaving the patient to the care of a junior doctor, who is not incompetent but has no experience as such (even if such junior doctor performs the surgery without mistakes) has also led to the finding of medical negligence.22

In the cases involving medical negligence, at the beginning, the person alleging the negligence has the initial onus to make out a case of negligence, and thereafter the onus shifts on to the doctor or the hospital to satisfy that there was no lack of care or diligence.23 It may also be noted that for imposition of civil liability on the hospital, it is not necessary that treating doctors or the nursing staff be made a party (the hospital alone can be the party to the proceeding), and it is immaterial if the medical professionals are the permanent staff or come on a visiting basis.24

The standard of care is to be judged keeping in view the body of knowledge and equipment available at the time of the incident. For example, if the allegation is that a doctor was negligent on account of his failure to use a particular equipment which should have been used, the court would consider whether such equipment was “generally available at that point of time” and therefore available for use.25 Every hospital cannot be expected to have state-of-the-art facilities and be fully equipped with the latest inventions and techniques. Sometimes, it becomes difficult to prove that certain equipment was generally available or not considering that there is no central or regional record of equipment used by medical professionals or hospitals. For instance, in a case where post a hernia operation in Hospital A, the arterial saturation of a diabetic patient could not be maintained due to unknown reasons, the patient had to be shifted to Hospital B which was equipped with a mechanical ventilator considering that Hospital A did not have it. The patient became comatose by the time he reached Hospital B and ultimately passed away. In this case, the State Commission fastened civil liability on Hospital A holding it guilty of medical negligence, among others, on the assumption (without any actual finding) that mechanical ventilators were generally available in Jaipur, Rajasthan, in September 2002 and Hospital A should have also had the same.26

While dealing with medical negligence cases, the opinions of the medical experts are often called for from both sides. Section 45 of the Indian Evidence Act, 1872, provides that when a court has to form an opinion on a point of science, the opinion of a person especially skilled in such science is considered “relevant.” It is to be noted that a “relevant” opinion is not synonymous to the opinion being “conclusive” and law reports are replete with illustrations of expert opinions being discarded for one reason or another. The real function of the expert is to put before the court all the material together with reasons which induce him to come to a certain conclusion so that the court, even though not an expert, may form its own judgment using its own observation of those materials.27 Experts only render opinions and those that are “intelligible, convincing, and tested”28 become important factors in the determination of the matter together with other evidence. Therefore, while the courts do not substitute their views for the view of the experts but if they determine that the course adopted by the medical professional concerned was inconceivable or highly unreasonable, it would be open to the court to return a finding of medical negligence.

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[1]). 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 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.[5]In a case that led to visual impairment as a side effect, the following observations were made. Theliterature 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.[6]

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 Appellantdoctor. 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.

Sanctity of professional judgments and other limitations

The legal system has to strike a careful balance between the autonomy of a doctor to make judgments and the rights of a patient to be dealt with fairly. Indian courts tend to give sufficient leeway to doctors and expressly recognize the complexity of the human body, inexactness of medical science, the inherent subjectivity of the process, genuine scope for error of judgment, and the importance of the autonomy of the medical professional. Few observations of Supreme Court in this context are worthy of reproduction:

“101. 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 straitjacketed formula and cannot be penalized for departing from that formula….102. While this court has no sympathy for doctors who are negligent; it must also be said that frivolous complaints against doctors have increased by leaps and bounds in our country, particularly after the medical profession was placed within the purview of the Consumer Protection Act. To give an example, earlier when a patient who had a symptom of having a heart attack would come to a doctor, the doctor would immediately inject him with morphia or pethidine injection before sending him to the Cardiac Care Unit because in cases of heart attack time is the essence of the matter. However, in some cases, the patient died before he reached the hospital. After the medical profession was brought under the Consumer Protection Act vide Indian Medical Assn. v. V. P. Shantha ((1995) 6 SCC 651), doctors who administer morphia or pethidine injection are often blamed and cases of medical negligence are filed against them. The result is that many doctors have stopped giving (even as family physicians) morphia or pethidine injection even in emergencies despite the fact that from the symptoms the doctor honestly thought that the patient was having a heart attack. This was out of fear that if the patient died the doctor would have to face legal proceedings….111. The courts and the Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists. …112. 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/she is.”31 Courts endeavor to protect the medical professionals from harassment but do not give in to misplaced sympathies. In fact, the courts do not substitute their own judgment with that of the medical professionals. For instance, adoption of a procedure involving higher risk with the bona fide expectation of better chances of success in preference to a procedure involving lesser risk but greater chances of failure, even if it invites divergent views among doctors, would not lead to a finding of negligence.32

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. Pandey vs. 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.[17] 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.[18] 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.[19] 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.[20]

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.[21]

RECENT SUPREME COURT'S JUDGMENT

The recent judgment pronounced in Martin F. D'Souza V. Mohd. Ishfaq[22] by the Hon'ble Supreme Court of India quite explicitly addresses the concerns of medical professionals regarding the adjudicatory process that is to be adopted by Courts and Forums in cases of alleged medical negligence filed against Doctors.

In March 1991, the Respondent who was suffering from chronic renal failure was referred by the Director of Health Services to the Nanavati Hospital in Mumbai for the purpose of a kidney transplant. At that stage, the Respondent was undergoing hemodialysis twice a week and was awaiting a suitable kidney donor. On May 20, 1991, the Respondent approached the Appellant doctor with a high fever, but he refused hospitalization despite the advice of the Appellant. On May 29, 1991 the Respondent who still had a high fever finally agreed to get admitted into the hospital due to his serious condition. On June 3, 1991, the reports of the urine culture and sensitivity showed a severe urinary tract infection due to Klebsiella species (1 lac/ml) sensitive only to Amikacin and Methenamine Mandelate. Methnamine Mandelate cannot be used in patients suffering from renal failure. Since the urinary infection was sensitive only to Amikacin, an injection of Amikacin was administered to the Respondet for 3 days (from June 5, 1991 to June 7, 1991). Upon treatment, the temperature of the Respondent rapidly subsided. On June 11, 1991, the Respondent who presented to the hemodialysis unit complained to the Appellant that he had slight tinnitus (ringing in the ear). The Appellant has alleged that he immediately told the Respondent to stop taking the Amikacin and Augmentin and scored out the treatment on the discharge card. However, despite express instructions from the Appellant, the Respondent continued taking Amikacin until June 17, 1991. Thereafter, the Respondent was not under the treatment of the Appellant. On June 14, 1991, June 18, 1991, and June 20, 1991 the Respondent received hemodialysis at Nanavati Hospital and allegedly did not complain of deafness during this period. On June 25, 1991, the Respondent, on his own accord, was admitted to Prince Aly Khan Hospital. The Complainant allegedly did not complain of deafness during this period and conversed with doctors normally, as is proved from their evidence. On July 30, 1991, the Respondent was operated upon for a transplant and on August 13, 1991, the Respondent was discharged from Prince Aly Khan Hospital after his transplant. The Respondent returned to Delhi on August 14, 991 after his discharge.

On July 7, 1992, the Respondent filed a complaint before the National Consumer Disputes Redressal Commission, New Delhi claiming compensation of an amount of Rs.12,00,000/- as his hearing had been affected. The Appellant filed his reply stating, inter alia, that there was no material brought on record by the Respondent to show any co-relationship between the drugs prescribed and the state of his health. The National Consumer Disputes Redressal Commission passed an order on October 6, 1993 directing the nomination of an expert from the All India Institute of Medical Sciences, New Delhi (AIIMS) to examine the complaint and give an unbiased and neutral opinion. AIIMS nominated Dr. P. Ghosh who was of the opinion that the drug Amikacin was administered by the Appellant as a lifesaving measure and was rightly used. It is submitted by the Appellant that the said report further makes it clear that there has been no negligence on the part of the Appellant. However, the National Commission has come to the conclusion that the Doctor was negligent.

Treatment without informed consent may also amount to negligence

The existence of doctor–patient relationship is a prerequisite to fasten liability on the doctor. The relationship is fiduciary in nature, and the obligation on the medical practitioner is greater when the patient ordinarily has an imprecise understanding of the ailment, diagnostic process, treatment, and all its attendant consequences. Duty to act in the best interest, however, cannot be stretched to a level where actions are taken against the will of the patient or without the consent of the patient if the patient is capable of understanding. Every patient has a right of self-determination and to reject the treatment even if such rejection were to be considered foolish by most rationale standards, and the medical professional cannot impose his will. Medical practitioners can, however, act on the substituted consent, if the primary consent is not available for a variety of reasons such as patient being a minor, mentally unsound, and unconscious.

In Samira Kohli v. Dr. Prabha Manchanda,29 a 44-year-old patient complaining of menstrual bleeding for 9 days, underwent an ultrasound test and was advised laparoscopy test under general anesthesia for making an affirmative diagnosis. The patient, while under general anesthesia, was subjected to a laparoscopic examination and simultaneously with the consent of the mother waiting outside the operation theater, abdominal hysterectomy (removal of uterus) and bilateral salpingo-oophorectomy (removal of ovaries and fallopian tubes) were conducted. It was held by the Supreme Court that consent taken for diagnostic procedure/surgery is not valid for performing therapeutic surgery either conservative or radical except in life-threatening or emergent situations. It was also held that where the consent by the patient is for a particular operative surgery; it cannot be treated as consent for an unauthorized additional procedure involving removal of an organ on the ground that such removal is beneficial to the patient or is likely to prevent some danger developing in future, if there is no imminent danger to the life or health of the patient. Supreme Court in the process of arriving at its judicial opinion examined the concept of “real consent” in the UK and “informed consent” in the US and finding the US standards to be too high and unsuitable for Indian conditions expressly rejected the same. It was further held that a doctor must secure the consent of the patient, and such consent should be “real and valid,” “adequate information” is to be furnished to the patient to enable him or her to make a balanced judgment, remote possibilities need not be disclosed, and the nature and extent of information to be furnished will be such as is considered “normal and proper by a body of medical men skilled and experienced in the particular field.” Subsequently, Supreme Court in Malay Kumar Ganguly v. Sukumar Mukherjee30 without reference to its previous judicial opinion in Samira Kohli emphasized on the need of doctors to engage with the patients during treatment, especially when the line of treatment is contested, has serious side effects and alternative treatments exist, and observed that “[i] n the times to come, litigation may be based on the theory of lack of informed consent.”

Supreme Court's Appreciation with Regard to Medical Negligence Liability

According to the Supreme Court, cases both civil and criminal as well as in Consumer Fora, are often filed against medical practitioners and hospitals complaining of medical negligence against doctors, hospitals, or nursing homes, hence the latter would naturally like to know about their liability. The general principles on this subject have been lucidly and elaborately explained in the three Judge Bench decisions of this Court in Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC 1. However, difficulties arise in the application of those general principles to specific cases. For instance, in paragraph 41 of the decision, it was observed that: “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 is what the law requires.” Now what is reasonable and what is unreasonable is a matter on which even experts may disagree. Also, they may disagree on what is a high level of care and what is a low level of care. To give another example, in paragraphs 12 to 16 of Jacob Mathew's case (Supra), it has been stated that simple negligence may result only in civil liability, but gross negligence or recklessness may result in criminal liability as well. For civil liability only, damages can be imposed by the Court but for criminal liability the Doctor can also be sent to jail (apart from damages that may be imposed on him in a civil suit or by the Consumer Fora). However, what is simple negligence and what is gross negligence may be a matter of dispute even among experts. The law, like medicine, is an inexact science. One cannot predict with certainty an outcome in many cases. It depends on the particular facts and circumstances of the case, and also the personal notions of the Judge who is hearing the case. However, the broad and general legal principles relating to medical negligence need to be understood. Before dealing with these principles two things have to be kept in mind:

1. Judges are not experts in medical science, rather they are laymen. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges usually have to rely on the testimonies of other doctors, which may not be objective in all cases. Since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand for a Judge, particularly in complicated medical matters and

2. a balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and are no good for society. They inhibit the free exercise of judgment by a professional in a particular situation.

The reasoning and decision

In the words of the Supreme Court, the facts of the case reveal that the Respondent was sufferingfrom chronic renal failure and was undergoing hemodialysis twice a week as treatment. He was  suffering from a high fever but he refused to get admitted into the hospital despite the advice of the Appellant. The Respondent was also suffering from a severe urinary tract infection that could only be treated by Amikacin or Methenamine Mandelate. Since Methenamine Mandelate cannot be used for patients suffering from renal failure, an injection of Amikacin was administered. A perusal of the complaint filed by the Respondent before the National Commission shows that his main allegation was that he suffered from a hearing impairment due to the negligence of the Appellant who allegedly prescribed an overdose of Amikacin injections with no regard for the critical condition of the Respondent who did not warrant such heavy dosage. The case of the Appellant, however, is that the Complainant was referred to the Appellant by Dr. F.P. Soonawalla, the renowned Urologist of Bombay. Dr. Soonawalla is an eminent doctor of international repute and he would not have ordinarily referred a patient to an incompetent doctor. This is one factor that goes in favor of the Appellant, though of course it is not conclusive. After examining the Complainant, the Appellant found that the Complainant was a patient of chronic renal failure due to bilateral polycystic kidneys and the Appellant advised hemodialysis twice a week as an out-patient. The Complainant was also investigated to find a suitable kidney donor. The Appellant has alleged in his written statement filed before the National Commission that the Complainant was in a hurry to have a quick kidney transplant and he was very obstinate, stubborn, and short-tempered. The Appellant was of the view that the Respondent's infection could only be treated by an injection of Amikacin, as Methenamine Mandelate could not be used due to his chronic renal failure. The Respondent's report also established his resistance to all other antibiotics. In our opinion, it is clear that the Respondent already had renal failure before the injection of Amikacin. Amikacin was administered after a test dosage only from June 5, 1991 and at this stage he did not complain of any side effects and his temperature subsided rapidly. On June 11, 1991, the Respondent complained to the Appellant of slight tinnitus or ringing in the ear. The Appellant immediately reviewed the treatment on the discharge card in possession of the Respondent and also asked his attendant i.e., his wife, to stop the injection of Amikacin and Cap. Augmantine verbally and also marked an X on the discharge card in his own handwriting on June 11, 1991 i.e., 3 days after discharge. Hence, as per the direction of the Appellant, the Respondent should have stopped receiving injections of Amikacin after June 10, 1991, but on his own he kept taking Amikacin injections. On perusal of the copies of the papers from the Cash Memo supplied by the Respondent as per annexure 4, it is in our opinion evident that the Respondent continued to take the medicine against the advice of the Appellant, and had unilaterally been getting injected as late as June 17, 1991, i.e., 7 days after he had been instructed verbally and in writing in the presence of his attendant i.e., his wife and staff members of the hospital to stop injections of Amikacin/Cap. Augmantine because of tinnitus as early as June 11, 1991. From the above facts, it is evident that the Appellant was not to blame in any way and it was the non cooperative attitude of the Respondent and his continuing with the Amikacin injections even after June 11, 1991 that was the cause of his ailment, i.e., the impairment of his hearing. A patient who does not listen to his doctor's advice often has to face adverse consequences. It is evident from the fact that the Respondent was already seriously ill before he met the Appellant. There is nothing to show from the evidence that the Appellant was in any way negligent, rather it appears that the Appellant did his best to give good treatment to the Respondent to save his life but the Respondent himself did not cooperate. Several doctors have been examined by the National Commission and we have read their evidence, which is on record. Apart from that, there is also the opinion of Prof. P. Ghosh of the All India Institute of Medical Sciences who had been nominated by AIIMS as requested by the Commission, which is also on record. The opinion of Dr. Ghosh was that there were many factors in the case of renal diseases that cause hearing loss and it is impossible to foretell the sensitivity of a patient to a drug, thereby making it difficult to assess the contributions towards toxicity by the other factors involved. He has also opined that the Amikacin dose of 500 mg twice a day for 14 days prescribed by the doctor was a life-saving measure and the Appellant did not have any option but to take this step. Life is more important than saving the function of the ear. Prof Ghosh was of the view that antibiotics were rightly given on the report of the sensitivity test that showed the organisms were sensitive to Amikacin. Hence, the antibiotic was not blindly used on speculation or as a clinical experiment. In view of the opinion of Prof Ghosh, who is an expert of the All India Institute of Medical Sciences, we are clearly of the view that the Appellant was not guilty of medical negligence but rather wanted to save the life of the Respondent. The Appellant was faced with a situation where not only was there kidney failure of the patient, but also urinary tract infection and blood infection. In this grave situation, which threatened the life of the patient, the Appellant had to take drastic steps. Even if he prescribed Amikacin for a longer period than is normally done, he obviously did it to save the life of the Respondent. We have also seen the evidence from other doctors as well as the affidavits filed before the National Commission. No doubt some of the doctors who have deposed in this case have given different opinions, but in cases relating to allegations of medical negligence, this Court has to exercise great caution. From these depositions and affidavits it cannot be said that the Appellant was negligent. In fact, most of the doctors who have deposed or given their affidavits before the Commission have stated that the Appellant was not negligent.

We see no reason to disbelieve the above allegations of the Appellant that on June 11, 1991 he had asked the Respondent to stop taking Amikacin injections, and in fact this version is corroborated by the testimony of the Senior Sister Mukta Kolekar. Hence, it was the Respondent himself who is to blame for having continued Amikacin after June 11, 1991 against the advice of the Appellant. Moreover, in the statement of Dr. Ghosh before the National Consumer Dispute Redressal Commission it has been stated that it is by no means established that Amikacin alone can cause deafness. Dr. Ghosh stated that there are 8 factors that can cause loss of hearing. Moreover, there are conflicting versions about the deafness of the Respondent. While the Respondent stated that he became deaf in June 1991, most of the Doctors who filed affidavits before the Commission have stated that they freely conversed with him in several meetings much after 21st June and in fact up to the middle of August 1991.

The National Commission had sought the assistance of AIIMS to give a report about the allegations of medical negligence against the Appellant. AIIMS had appointed Dr. Ghosh to investigate the case and submit a report and Dr. Ghosh submitted a report in favor of the Appellant. Surprisingly, the Commission has not placed much reliance on the report of Dr. Ghosh, although he is an outstanding ENT specialist of international repute. We have carefully perused 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. The Commission should have realized that different doctors have different approaches, for instance, some have more radical approaches while some have more conservative approaches. All doctors cannot be fit into a straight-jacketed formula and cannot be penalized for departing from that formula. While this Court has no sympathy for doctors who are negligent, it must also be said that frivolous complaints against doctors have increased by leaps and bounds in our country particularly after the medical profession was placed within the purview of the Consumer Protection Act. To give an example, earlier when a patient who had a symptom of having a heart attack would come to a doctor, the doctor would immediately inject him with Morphia or Pethidine injection before sending him to the Cardiac Care Unit (CCU) because in cases of heart attack time is the essence of the matter. However, in some cases the patient died before he reached the hospital. After the medical profession was brought under the Consumer Protection Act vide Indian Medical Association vs. V.P. Shantha 1995 (6) SCC 651 doctors who administer the Morphia or Pethidine injection are often blamed and cases of medical negligence are filed against them. The result is that many doctors have stopped giving (even as family physicians) Morphia or Pethidine injections even in emergencies despite the fact that from the symptoms the doctor honestly thought the patient was having a heart attack. This was out of fear that if the patient died the doctor would have to face legal proceedings. Similarly, in cases of head injuries (which are very common in road side accidents in Delhi and other cities) earlier the doctor who was first approached would started giving first aid and apply stitches to stop the bleeding. However, now what is often seen is that doctors out of fear of facing legal proceedings do not give first aid to the patient, and instead tell him to proceed to the hospital by which time the patient may develop other complications. Hence, Courts and Consumer Fora should keep the above factors in mind when deciding cases related to medical negligence, and not take a view that would be in fact a disservice to the public. The decision of this Court in Indian Medical Association vs. V.P. Shantha (Supra) should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. In fact, in the aforementioned decision, it has been observed that (vide para 22): “In the matter of professional liability professions differ from other 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.”

It may be mentioned that the All India Institute of Sciences has been doing outstanding research in Stem Cell Therapy for the last 8 years for treating patients suffering from paralysis, terminal cardiac condition, parkinsonism, etc., though not yet with very notable success. This does not mean that the work of Stem Cell Therapy should stop, otherwise science cannot progress. 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, 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. Only after that doctor or committee reports that there is a prima facie case of medical negligence should a notice be issued to the concerned doctor/hospital. 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. In the present case, the Appellant was faced with an extremely serious situation. Had the Appellant been only suffering from renal failure, it is possible that a view could be taken that the dose prescribed for the Appellant was excessive. However, the Respondent was not only suffering from renal failure but he was also suffering from urinary tract infection and blood infection i.e., septicemia, which is blood poisoning caused by bacteria or a toxin. He also had extremely high urea. In this extremely serious situation, the Appellant naturally had to take a drastic measure to attempt to save the life of the Respondent. The situation was aggravated by the non cooperation of the Respondent who seems to be of an assertive nature as deposed by the witnesses. Extraordinary situations require extraordinary remedies. Even assuming that such a high dose of Amikacin would ordinarily lead to hearing impairment, the Appellant was faced with a situation between the devil and the deep sea. If he chose to save the life of the patient rather than his hearing surely he cannot be faulted. The allegation against the Appellant is that he gave an overdose of the antibiotic. In this connection it may be mentioned that antibiotics are usually given for a minimum of 5 days, but there is no upper limit to the number of days for which they should continue and it all depends on the condition of the patient. Giving a lower dose of the antibiotic may create other complications because it can cause resistance in the bacteria to the drug, and then it will be more difficult to treat. With regard to the impairment of hearing of the Respondent, it may be mentioned that there is no known antibiotic drug without side effects. Hence, merely because there was impairment in the hearing of the Respondent that does not mean that the Appellant was negligent. The Appellant was desperately trying to save the life of the Respondent, which he succeeded in doing. Life is surely more important than side effects.

For example many anti-tubercular drugs (e.g., Streptomycin) can cause impairment of hearing. Does this mean that TB patients should be allowed to die and not be given the anti-tubercular drug because it impairs hearing? Surely the answer will be negative. 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 competence just because of some bad apples. 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. On the facts of this particular case, we are of the opinion that the Appellant was not guilty of medical negligence.

Advisory to Doctors and Safeguards in Criminal Prosecution by Supreme Court

Supreme Court in one case33 noted broadly the precautions which ought to be taken, and the same are reproduced herein below:

“Precautions which doctors/hospitals/nursing homes should take:

a. Current practices, infrastructure, paramedical and other staff, hygiene, and sterility should be observed strictly. Thus, in Sarwat Ali Khan v. Prof. R. Gogi (OP No. 181 of 1997 decided on July 18, 2007 [NC]) the facts were that out of 52 cataract operations performed between September 26, 1995, and September 28, 1995, in an eye hospital, 14 persons lost their vision in the operated eye. An enquiry revealed that in the operation theater, two autoclaves were not working properly. This equipment is absolutely necessary to carry out sterilization of instruments, cotton, pads, linen, etc., and the damage occurred because of its absence in working condition. The doctors were held liable

b. No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided

c. A doctor should not merely go by the version of the patient regarding his symptoms but should also make his own analysis including tests and investigations where necessary

d. A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient

e. An expert should be consulted in case of any doubt. Thus, in Indrani Bhattacharjee (OP No. 233 of 1996 decided on 9-8-2007 [NC]), the patient was diagnosed as having 'mild lateral wall ischemia.’ The doctor prescribed medicine for gastroenteritis but he expired. It was held that the doctor was negligent as he should have advised consulting a cardiologist in writingf. Full record of the diagnosis, treatment, etc., should be maintained.”

The above are in the nature of broad advisory.

Keeping in the view the rise in criminal prosecution of doctors, which is both embarrassing and harassing for them, and to protect them from frivolous and unjust prosecutions Supreme Court laid certain binding guidelines till statutory rules or instructions by the government in consultation with

MCI are issued, which are as follows: 34

1. Private complaint may not be entertained unless the complainant has produced prima facie evidence in the court in the form of a credible opinion given by another competent doctor

2. Investigation officer should 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 test to the facts collected in the investigation

3. Doctor may not be arrested in a routine manner unless the arrest is necessary for furthering the investigation or for collecting the evidence or if the investigation officer is satisfied that doctor may flee.

The necessity for obtaining independent medical opinion was insisted upon considering that the knowledge of medical science to determine whether the acts of medical professional amounts to negligent act within the domain of criminal law could not be presumed. This requirement was subsequently sought to be made a necessity by the Supreme Court even for initiating the action seeking imposition of civil penalties but was done away with thereafter for civil actions.

CONCLUSION

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.