Table of Contents
MEDICAL NEGLIGENCE UNDER LAW OF TORTS
Introduction:
The Indian Law of Torts is based upon the Common Law of England. The term negligence has been derived from a Latin term ‘neglentia’ meaning ‘failing to pick up’. The principles of justice, equity and good conscience determine the law of negligence. Negligence means an act which is done by a person without reasonable care and precautions as should have been exercised in that situation.
Negligence is defined in Winfield and Jolowicz as “Negligence is the breach of a legal duty of care by the plaintiff which results in undesired damage to the plaintiff.”[1]
The term was defined in Blyth v. Birmingham Water Works Co.[2] as “The omission to do something which a reasonable man would do or doing something which a prudent man would not do.”
In the case of Lochgelly Iron & Coal Co. v. McMullan[3], negligence was defined by Lord Wright as “More than headless and careless conduct, whether in commission or omission; it properly connotes complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.”
Negligence can be characterized into three forms:-
Misfeasance: Misfeasance means the act of failing to perform an action properly. For example- Using poor quality materials for repairing an old building, thereby resulting in the collapse of the building, causing injuries and casualties.
Malfeasance: Malfeasance is the conduct of an act which should not have been done in the first place. For example- Use of products which are combustible and not allowed to carry out the repair work of the old building, thereby leading to firetrap, causing an accident.
Nonfeasance: Nonfeasance is the failure to perform an act which ought to have been done. For example- Failing to carry out the repair work of an old building when it should have been done.
In criminal law, the extent of the liability of the parties is determined while considering the degree of negligence. But in Tort law, the number of damages incurred by a party is determined.
For example– A, the owner of a dog asks his friend C to take care of the dog while he is out of town for two days. C, while A is away, leaves the dog unattended and the dog attacks a passer-by causing severe injuries. Here, the act of C will be considered to have been negligent and not A.
Medical Negligence:
Every person who enters into a profession assures of a skilled and efficient work. He/she assures to work with reasonable care and skill and guarantees that the skills possessed by him/her shall be exercised with due diligence. Similarly, a medical professional does not guarantee the results of treatment to a patient. A surgeon may not assure of a 100% affirmative result of the operation but guarantees that the skills possessed by him in that branch of practice would be performed by him/her with reasonable competence. Therefore, according to these standards, a professional would be negligent under two instances- first, either the professional did not possess the requisite skills he/she was required to possess; secondly, the professional did not exercise with reasonable competence. Any person who provides medical treatment or advice to others impliedly undertakes his possession of knowledge and skills. Therefore, such person has certain duties to consider, such as decision regarding the undertaking of case by him/her and decision regarding the kind of treatment to be administered. Any breach of such duties indicates negligence on the person’s part and gives a right of action against him/her. As it is said, to err is to human, but causing injury to others due to mere carelessness is negligence.
Some of the examples of medical negligence include- performing inappropriate or wrong surgery on the patient, lack of proper medical advice, wrongful prescription of medicines, leaving any foreign object, such as a towel, bandage, etc. while performing surgery, etc. However, an error in judgement by a medical professional does not amount to negligence as due to change of circumstances or even in the same circumstances, there can be instances where the decision of the doctors goes wrong. But, considering the essential factors related to treatment, if a wrong judgement is taken, then it would be negligence as the medical professional had the efficient knowledge of the factors.
The Supreme Court of India in Kusum Sharma v. Batra Hospital[4] held that a doctor adopts procedure involving higher element of risk, but he/she has an honest belief of greater chances of success in the treatment. Therefore, if the doctor performs the treatment and it does not yield affirmative results, then it does not amount to medical negligence. In Jasbir Kaur v. State of Punjab[5], a new born child was found bleeding near the wash basin of the bathroom. It was contended by the hospital authorities that a cat had taken away the child and had caused the damage. However, the court held that the hospital authorities were negligent in taking reasonable care of the new born child and awarded a compensation of Rs. 1 lakh to the aggrieved party.
Res Ipsa Loquitur
The maxim ‘res ipsa loquitur’ means that a thing speaks for itself. This means that the mere happening of accident raises the inference of negligence against the defendant. This maxim is applied for the very reason that the acts or omissions of the medical professional which caused the injury may not be precisely known by the plaintiff and is solely within the means of knowledge of the plaintiff. Therefore, the maxim helps plaintiff to prove the negligence by the defendant through the implication of accident caused.
Two requirements while applying the maxim of res ipsa loquitur were put forth by Earl, C.J., in Scott v. London & St. Katherine Docks Co.[6]:
- The thing which caused the injury was under the control of the defendant or his servant: Mere happening of accident must be the evidence of negligence by defendant or another person who was under the defendant’s control. However, if the evidence shows that the actions which lead to the happening of accident were not under the control of the defendant, then the defendant would not be liable for medical negligence.
- The accident should be of nature, as would not have happened without negligence in the ordinary course of things: If the accident provides an inference to negligence by defendant, then all the circumstances and the common experience and knowledge are also needed to be considered. A medical professional has wide discretion of choosing the treatment for his/her patients, which even gets wider during emergency cases. Therefore, the medical professional is required to practice reasonable care, skills and knowledge in such circumstances.
“The skills of medical practitioners differ from doctor to doctor and there may be more than one course of treatment advisable to the patient. Medical opinion may differ with regard to the treatment given but as long as the doctor acts in a manner acceptable to the medical profession and the Court finds that the patient has been attended with due care, skill and diligence; even if the patient does not survive or suffers a permanent ailment, it would be difficult to hold the doctor guilty of negligence.”[7]
In Aparna Dutta v. Apollo Hospital Enterprises Ltd.[8], the plaintiff had undergone a surgery for removal of uterus in the defendant hospital and an abdominal pack was left in her abdomen, which was removed through another surgery. The Court held the leaving of foreign matter in the body to be a case of res ipsa loquitur and held the hospital authorities to be liable to pay compensation of Rs. 5,80,000 to the plaintiff.
Standard Of Care:
Under English law, in Bolam v. Friern Hospital Management Committee[9], the Jury put down a test for determining the reasonableness and standards used by the doctor for treatment. The court stated that there may be more than one proper standards for treatment and conforming to any one these standards means that the doctor is not negligent. A man does not require to possess highest expertise, it is sufficient if he possesses the ordinary skill of an ordinary competent man exercising that art. The test thus came to be known as the Bolam Test.
The Bolam Test was further summarized in Eckersley v, Binnie[10]– “A professional should have the knowledge forming part of the professional equipment of an ordinary member of the profession. The professional should not fail to cope up with the new advances, discoveries and developments in his/her field. The professional should be alert about the hazards and risks in a professional task to the extent where the ordinarily competent members of the profession would be alert. He/she must have no less expertise than any ordinarily competent member of the profession. The law does not require for a man to be a paragon combining the qualities of a polymath and Prophet.”
In Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole & Anr.[11], the apex court held that a doctor has certain duties, which if broken, make him/her liable for medical negligence. A doctor is required to exercise a reasonable amount of care set for his/her profession.
Duty Of Care
A doctor owes certain duty of care towards the patients. Breach of any of such duties of care by the doctor gives a right of action for negligence to the patient. The duties of care include:
- A duty of care to decide whether to undertake the medical case or not;
- A duty of care to decide which kind of treatment to be given to the patient;
- A duty of care while administrating treatment to the patient.
Some cases related to the duty of care by the doctor have been listed below:
- In the case of Gian Kaur v. Vinod Kumar Sharma[12], a victim of burn injuries was shifted from the surgical ward to the children medical ward. The doctor then forced the patient to leave the ward under the umbrage that the patient had been admitted in the ward without his permission. The patient was thus left in the veranda in cold rainy weather due to which she died. The doctor did not give any explanation for his decision of shifting the patient from the ward to the veranda and thus the Court held that the doctor was not only negligent in his act, but had also shown a callous approach towards the patient and was therefore liable for the child’s death.
- In C. Sivakumar v. Dr. John Arthur & Anr.[13], the plaintiff, who had a blockage of urine was operated upon by the doctor. The doctor cut off the plaintiff’s penis totally, thereby making the plaintiff impotent. The Court held the case to be of a deficiency in the service rendered to the patient and held the doctor liable to pay a compensation of Rs. 8 lakhs to the plaintiff.
- In the case of Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole & Anr.[14]. The 20-year-old son of the respondent met with an accident resulting in a fractured leg. He was taken to the hospital where the doctor did not provide anaesthetic, but contended himself with a single dose of morphia injection. The use of three attendants in pulling his leg lead to excessive pressure and the doctor put a plaster on the broken leg. However, the treatment caused shock and lead to the death of the son of the respondent. As the doctor had been uncareful in the use of force used for the treatment, the Court held him to be liable of medical negligence.
- In Dr. P. Narasimha Rao v. G. Jayaprakasu[15], the plaintiff, a 17-year-old student underwent a surgery which caused an irreparable damage to his brain. It was found that the plaintiff had not been provided better diagnosis and if the surgery would not have been performed, the brain damage would not have occurred. It was also found that the anaesthetist had failed to administer respiratory resuscitation by oxygenating the patient with a mask or bag. Thus, the Court held both the doctor and the anaesthetist liable for medical negligence.
- In Joint Director of Health Services, Shivagangai v. Sonai[16], the plaintiff’s wife was operated upon for family planning and was discharged the same day. The post-operational treatment of the patient was not administered properly and she suffered from abdominal pain after two days. The stitches of the operation were allowed by the doctor to be removed by an unqualified motivator. The patient died after a few days. The Court held both the doctor as well as the State to be liable for medical negligence.
Thus, from the above cases it can be fairly deduced that not only the doctor, but the nursing staff and the hospital authorities are held to be liable for medical negligence.
Burden Of Proof:
In order to present a suit for negligence, the onus to prove negligence is on the plaintiff and not the respondent. It is the plaintiff who needs to provide evidence and facts which lead to the negligence by the defendant. The onus of proving negligence and deficiency of service is on the plaintiff.[17] Compensation can be awarded only if the failure of operation is due to the negligence of the doctor and the burden to prove negligence lies on the plaintiff.[18]
In the case of T.T. Thomas v. Elisa[19], the doctor failed to perform operation in emergency on the plaintiff’s husband who was admitted due to severe abdominal pain and had been diagnosed as a case of acute appendicitis requiring immediate operation. The patient died resultantly. It was held by the High Court of Kerala that the doctor had been negligent in not performing the operation immediately and was liable for the patient’s death. The doctor contended that the patient’s consent to perform the operation was not taken. However, it was held that the burden of proof lied on the doctor to prove that the patient had refused to undergo the operation, which was not proved by the doctor. Therefore, the doctor was held to be liable for medical negligence.
But, in certain circumstances, the cases were rejected due to failure to prove negligence. In the case of Madhubala v. Government of N.C.T. of Delhi[20], the plaintiff contended that even after going through a tubectomy operation, the plaintiff had conceived a child due to the negligence of doctor. However, it was contended by the hospital authorities that the patient had been informed about the chances of pregnancy even after the operation. The hospital also contended that the patient herself was negligent in not informing about her irregular menstrual cycle which was enquired from her before the operation. Thus, the court held it not to be a case of res ipsa loquitur and did not grant compensation to the plaintiff.
Therefore, the burden of proof for negligence basically lies on the plaintiff. The burden of proof then shifts to the doctor to prove that he/she acted reasonably with the best of his abilities and also in the best of interest of the patient. However, the burden of proof can also change in certain circumstances as was found in T.T. Thomas v. Elisa[21]. The burden of proof is not required in cases of gross negligence as res ipsa loquitur applies to such cases.
Conclusion:
Thus, it can be fairly concluded that even though doctors are considered as Gods by the patients, and the patients have complete faith in doctors to heal them of their sufferings, there can be cases of negligence by the doctors too. Doctors are also humans, and to err is to human. However, mistakes which are of the nature that cause severe issues to the patients, such that causing death of the patient or some permanent deformity, then there is a need to exercise the rights against negligence which are available to the patients.
Medical negligence cannot be held to be a simple tort. It may change from a simple tort whereby the result may turn to be a temporary or slight injury, to a grievous tort which may turn into a permanent damage or death resulting from a simple injury. Therefore, medical negligence requires a high degree of care expected from a skilled doctor belonging to the category of ordinary prudent skilled doctors.
There should be a balance maintained between the rights of patients and the rights of the doctors. The medical ethics need to be reformed and considered accordingly in order to serve the society with complete righteousness.
[1] Winfield and Jolowicz on Tort, Ninth edn., 1971, p.45.
[2] Blyth v. Birmingham Water Works Co., (1856) LR 11 Exch. 781.
[3] Lochgelly Iron & Coal Co. v. McMullan, 1934 AC 1.
[4] Kusum Sharma v. Batra Hospital, (2010) 3 SCC 480.
[5] Jasbir Kaur v. State of Punjab, 1995 ACJ 1048.
[6] Scott v. London & St. Katherine Docks Co., [1865] 3 H&C 596.
[7] Achutrao Khodwa v. State of Maharashtra, (1996) 2 SCC 634.
[8] Aparna Dutta v. Apollo Hospital Enterprises Ltd., (2002) ACJ 954 (Mad. HC).
[9] Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 582.
[10] Eckersley v, Binnie, [1988] 18 Con LR 44.
[11] Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole & Anr., (1969) 1 SCR 206.
[12] Gian Kaur v. Vinod Kumar Sharma, (1996) AIR 946, (1996) SCC (2) 648.
[13] C. Sivakumar v. Dr. John Arthur & Anr., O.P. No. 465 of 1993.
[14] Ibid at 11.
[15] Dr. P. Narasimha Rao v. G. Jayaprakasu, AIR 1990 AP 207.
[16] Joint Director of Health Services, Shivagangal v. Sonai, (2000) IIMLJ 414.
[17] Calcutta Medical Research Institute v. Bimalesh Chatterjee, (1999) CPJ 13 (NC).
[18] State of Punjab v. Shiv Ram, AIR 2005 SC 3280.
[19] T.T. Thomas v. Elisa, AIR 1987 Ker 52.
[20] Madhubala v. Government of N.C.T. of Delhi, 2005 (118) DLT 515.
[21] Ibid at 19.
Author: Priyanjali Priyadarshini,
Tamil Nadu National Law University, 2nd Year