What is medical negligence? - A critical appraisal

INTRODUCTION

The relationship between doctor and patient is considered pious from ancient times, but as consumerism increased worldwide, this relationship also eroded, and litigation against medical professionals is now on the rise, so doctors must have a clear understanding of what constitutes medical negligence and its legal implications in terms of ethical, civil, and criminal liabilities. The study conducted by the Indian Medical Association in 2017 shows that around 25% of doctors fear being sued, followed by fear of criminal prosecution in around 14%.^[1] This excessive fear of litigation leads to the practice of defensive medicine, due to which a lot of serious patients do not receive proper treatment on time and ultimately succumb to death. In this editorial, we will discuss medical negligence and its legal implications for doctors.

NEGLIGENCE

Negligence is the failure to exercise the amount of reasonable care that a person of average intelligence would take in similar circumstances, which results in loss or damage to another person. The concept of negligence in the case of doctors is a bit complicated to understand, and we will discuss it one by one. For negligence, doctors can be prosecuted in four places:

1. First, on grounds of violation of medical ethics at the National Medical Commission.

2. Second in civil courts for medical negligence under the category of torts.

3. Third in consumer courts for deficiency of services

4. Fourth in criminal court for criminal negligence.

An important question that needs to be addressed by our legislators and the law commissions of India is whether it is justified to prosecute highly skilled professional doctors for their negligence at four different places for a single case of medical negligence. Medical science is an ever-changing science, and the treatment of the same disease can be done by different medicines and different systems of medicine apart from modern medicine, such as Ayurveda and homeopathy. The outcome of any treatment cannot be guaranteed, so establishing medical negligence is not an easy task. Over time, some principles have evolved, and we will discuss them one by one.

WHAT CONSTITUTES MEDICAL NEGLIGENCE?

The Supreme Court of India has given its opinion on medical negligence in the Dr. Suresh Gupta^[2] case:

“When a patient agrees to go for medical treatment or a surgical operation, every careless act of the medical man cannot be termed as ‘criminal’. It can be termed ‘criminal’ only when the medical man exhibits a gross lack of competence or inaction, and wanton indifference to his patient’s safety, which is found to have arisen from gross ignorance or gross negligence. Where a patient’s death results merely from an error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.”

In the Jacob Mathew case, Honorable Supreme Court of India, 2005, the following important principles were concluded:

“Complete ignorance of the possible complications of treatment is negligence. If a potential risk was anticipated and reasonable precautions were taken to diagnose and address it, then it does not amount to negligence. It is not negligence if the doctor has treated as per the standard treatment guidelines/approved practice. The approved practice at the time of the actual incident is considered, and not the one at the time of trial. It is retrospective. All guidelines laid down in Jacob Mathew’s case were also applicable to civil negligence cases. For the first time, Bolam’s test, as a test of medical negligence, was also recorded in India”.^[3]

THE BOLAM PRINCIPLE OF NEGLIGENCE

Mr McNair J, in Bolam v. Friern Hospital Management Committee, explained the negligence in the following words^[4]:

“Where u get a situation that involves the use of some special skill or competence, then the test to determine whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he does not have this special skill. The test is the standard of the ordinary skilled man exercising and professing to have the special skill. A man need not possess the highest expert skill: it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

In Sharma et al., Batra Hospital and Medical Research Centre, and others,^[5] the Honorable Supreme Court referred to Halsbury’s Laws of the United Kingdom, which defined medical negligence as a responsibility owed to the patient. Further, in this case, the Supreme Court of India, in 2010, again put forward the following important principles of medical negligence:

“Error in judgment is not negligence, and taking a higher element of risk to save the patient, which did not yield the desired outcome, may not amount to negligence if proper care was taken. Medical science has extended great benefits to the patients, but these benefits come with their own side effects and risks.”

In the case of Vinod Jain v. Santokba Durlabhji Memorial Hospital and others, 2019, again, the Supreme Court clarified the following points regarding medical negligence:

“In day-to-day medical practice, there is often disagreement among doctors. This cannot be a basis for suing for medical negligence. Medical professionals are negligent only if their conduct falls below reasonable standards. Some high-risk medical procedures, despite their success, may not yield consistent positive results. This is one area where most patients become unsatisfied and falsely allege medical negligence, and further, the Honorable Supreme Court stated that society must protect medical practitioners from unnecessary harassment and humiliation.”^[6]

THE BOLITHO TEST

In V Kishan Rao v. Nikhil Super Speciality Hospital case 4, the two-judge bench of the Supreme Court highlighted the shortcomings of the Bolam test of medical negligence and commented as follows:

“Even though the Bolam test was accepted by this Court as providing the standard norms in cases of medical negligence, in the country of its origin, it is questioned on various grounds. It has been found that the inherent danger in the Bolam test is that if the Courts defer too readily to expert evidence, medical standards would obviously decline”.

The Bolitho rule, which was the outcome of the 1996 court case of Bolitho v. City and Hackney HA, is an amendment to the Bolam test, one of the most important court decisions with respect to medical negligence. According to the Bolam test, no doctor can be declared negligent if they are deemed to have acted “in accordance with a responsible body of medical opinion.” The Bolitho test adds that a doctor is not negligent if he or she acts in accordance with a responsible body of medical opinion, provided that the court finds such an opinion to be logical. Hence, the Bolitho test clarified that the body giving a medical opinion must be a responsible body, and the opinion of the body should be logical in the opinion of the court; it simply means that courts are not bound to rely only on expert opinion, but they can directly see whether the opinion of the expert body is logical or not.

The Bolam and Bolitho tests are two pillars for the assessment of medical negligence in courts. Now, even the Supreme Court of India has recognized the use of the Bolitho test in ascertaining medical negligence in principle.

RES IPSA LOQUITUR

This is a rule of evidence under the law of torts. Res ipsa loquitur means “the thing speaks for itself ” in Latin. The use of this maxim is not clear in the case of medical negligence. Medical science is complex, and responses to medical treatment are too unpredictable; due to this fact, it is not easy to use this maxim in the case of medical negligence.

There are three components of negligence as follows: –

1. The existence of a legal duty or responsibility toward the party complaining about the former’s conduct within the scope of the duty

2. A breach of legal responsibility

3. Consequential damage resulting from the breach.

BURDEN OF PROOF

The National Consumer Disputes Redressal Commission, in its judgments in the Kanhaiya Kumar Singh case^[7] and the Calcutta Medical Research Institute case^[8], has held that medical negligence has to be proven and cannot be presumed; and that the responsibility of proving medical negligence lies with the complainant. This dictum is now a settled proposition of law in the Upasana Hospital case.^[9]

Where the principle of res ipsa loquitor can be applied, i.e., when facts speak for themselves, like some examples are a mismatched blood transfusion, leaving a swab/instrument inside the human body, or amputation of the wrong limb, etc. Here, the burden of proof shifts to the respondent (doctor) in civil cases. In Jacob Matthew case,^[10] the Supreme Court has clarified that res ipsa loquitor is a rule of evidence, helpful in fixing the onus of proof in civil medical negligence only, and has very limited application in criminal negligence cases. A criminal conviction cannot be solely based on the principle of res ipsa loquitor.

PROSPECTIVE PROPOSITION