“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.” – Supreme Court in Indian Medical Association Vs V.P Shantha and OthersThe term “Medical Negligence” is a term that explains culpable carelessness in the field of medical science. It involves risk to the health and being of an individual who entrusts his wellbeing into the hands of a medical professional. “Failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party” is called medical negligence. Other definitions of medical negligence include “Lack of due care or failure to do what is reasonable and prudent under the circumstances” and “Omission of something that a reasonable person, guided by those considerations that ordinarily regulate the conduct of human beings, would do, or doing something that a prudent, reasonable person would not do.” Negligence excludes wrongful intention because negligence and wrongful intention are mutually exclusive of each other. It must be remembered that the foremost pre-requisite of liability in criminal cases is the presence of intention- “a guilty mind”. This is supported by the well known maxim, “Actus non facit reum, nisi mens sit rea.” According to this maxim the act in itself does not amount to the guilt of the person; the presence of a guilty mind (mens rea) is of utmost importance. Therefore, before a person is punished for an act done by him, it is imperative to test the mental attitude of the doer so as to determine whether the intention was to do harm to the other person or not. The act may have been wrongful but if the mental outlook of the doer is that of an innocent man he cannot be punished. Thus, the mental stance of the medical practitioner will have to concur with the act before he can be punished before law.
Supreme Court Judgment- Jacob Matthews Vs State of Punjab (2005 Crl. L.J. 3710)
In recent times, the Supreme Court has sought to answer the question as to whether it has granted an impetus to the medical professionals when it comes to medical negligence. The recent Supreme Court judgments have created a wide array of confusion as to whether it has granted the medical practitioners a license to kill or has it provided them with necessary safeguards so as to maintain the sanctity of their profession. The Supreme Court judgment in Jacob Matthews Vs State of Punjab (2005 Crl. L.J. 3710) is marked as the landmark judgment in the field of medical negligence. The Supreme Court held that extreme ‘care’ and ‘caution’ should be exercised while initiating criminal proceedings against a medical practitioner. It has framed obligatory guidelines under which a medical practitioner could be held criminally liable on account of his professional negligence or deficiency of services. At the same time it has drawn up elaborate safeguards for the doctors, including immunity from getting arrested unless it is inevitable. Supporting its decision, the bench ruled that it was necessary “for, the service which medical profession renders to human beings is probably the noblest of all and hence there is a need for protecting doctors from unjust prosecutions.” The Court further added that “Negligence in the context of medical profession necessarily calls for a treatment with a difference… A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of the medical professional. The Court however, made it plain that this does not mean that the doctors cannot be prosecuted at all. It said “all that we are doing is to emphasize the need for care and caution in the interest of the society…”. According to the ruling of the Court, mere error in judgment does not amount to medical negligence. The apex court in deciding this case had established three necessary guidelines so as to determine whether the medical practitioner is criminally liable or not. These guidelines are as mentioned under;
ü A complaint against a doctor is not to be entertained unless the allegation against him is supported by a credible opinion given by another doctor. If the doctor feels that negligence on the part of the medical practitioner has resulted to the loss of well being of the plaintiff, then the complaint may be registered.
ü The investigating officer before proceeding against the accused ought to get a medical opinion from a competent doctor, preferably in the government services, qualified in that field of medical sciences who can give an impartial opinion.
ü The arrest of the accused should be withheld unless it is believed by the investigating officer unless he believes that it is necessary to arrest the accused so as to further the investigation of the case. It may further be withheld unless it is believed that the accused doctor will not make himself available to face the prosecution unless he is arrested.
However, the court specified that these provisions will be active till the Government in consultation with the Medical Council of India frame statutory rules regarding the same. In cases of medical negligence, a doctor has to prove in front of the court that he had used reasonable care in the treatment of his patients to the best of his judgment. The law requires a competent doctor to use that degree of skill which an averagely competent man of his profession ought to have; they do not expect him to possess highest degree of skill in the treatment of his patients. According to Lord Denning, “it would be a great disservice to the community at large, if we impose liability on the doctors for each and everything that goes wrong”.
Are doctors infallible?
There are often cases which show genuine malpractice on behest of the medico but due to the new ruling, they often escape. Their negligence goes unnoticed by to all except by the errant doctors. Voltaire, an eminent philosopher had once said, “Doctors are men who prescribe medicines of which they know little, to cure diseases of which they know less, in human beings of whom they know nothing”. Though the medical profession is still regarded as one of the noblest professions, there are more and more doctors taking advantage of the legal protection provided to them. This is one profession that has on a continuous basis dodged the jurisdiction of the courts of India. Another view taken of the Jacob Matthews Case is that when the Supreme Court held that a doctor cannot be held liable for the death of the patient, it had undermined equality before the eyes of law.
In the case of Bhajan Lal Gupta Vs Moolchand Khairati Ram (2000 (1) CPJ 31), the judgment of the Supreme Court stated that, “one of the tests of medical negligence is that something which is required under medical practice to be done was not done or what was done was contradicted at the same time. It is also a settled principle of law that a specialist is supposed to know the latest technique for management of the patient and if he is ignorant about it, then he could be considered to be negligent in his profession.”
Courts are of the view that the evidence may not always depend on the testimony of a medical personnel alone. Sometimes the negligence deals with the basic requirements of a patient which even a normal witness with no medical background may know about. Therefore, the question that comes to one’s mind is that if there is such a negligence which is testified to have happened by a witness, should it not be taken into account? Such issues can be put to rest by a testimony of such a witness instead of a medical professional. Taking this view into account the Supreme Court acquitted Dr. Jacobs of all charges taking the Suresh Gupta Case ((2004) 6 SCC 422) as a precedent.
Though the constitution does not provide for some special privileges given to patients, Section 21 thrusts an obligation upon the medical professionals to protect life. It was held by the Supreme Court in the case of State of Punjab Vs Maninder Singh Chawla (AIR 1997 SC 1225) that, “Article 21 of the Constitution of India provides for the protection of life and personal liberty. The right to life enshrined in this article includes right to health, and the right to live with dignity. No one can violate the right to life. If anybody including a medical professional causes harm and injury to any person without his consent, he commits a criminal wrong giving rise to criminal liability”.
It becomes clear that a doctor has certain duties towards his patients which he needs to fulfill. If he fails in them he may be sued by the patient for an act of negligence.
Extent of Liability of Medical Professionals
In the case of Indian Medical Association Vs V. P Shantha in the year of 1995, the Supreme Court judgment proved to be a monumental one. It changed the way one viewed the medical profession from a totally legal point of view. The judgment brought the medical profession within the ambit of the Consumer Protection Act, 1986. Patients could now sue the doctors for injuries sustained by them, in Consumer Courts. The judgment bound the doctors to their patients in a contractual way. The Supreme Court further specified that even though the service provided by the doctors was that of a personal nature, it cannot be supposed to fall within the purview of contract of personal service. It was held that such contractual obligation should be treated as a contract of service.
Where free services are rendered to the patient by medical professionals, it will not fall within the ambit of the term ‘service’ unless the payment of the fees was waived due the patient’s inability to pay. Under civil law, where the territory of Consumer Protection Act ends, the field of the Law of Torts takes over to protect the interest of the patients. Where the patient cannot sue the doctor under the Consumer Protection Act because of the limitation under the term ‘service’, the patient can do so under the Law of Torts suing the doctor for injuries sustained by him due to the doctor’s negligence.
Sometimes the negligence on the part of the doctor is so grave and obvious that the doctor then faces the threat of criminal proceedings. A doctor can be tried under Section 304-A of the Indian Penal Code, for causing death by a negligent act. It must be remembered that there are high standards to match up to, for proving a doctor grossly negligent. He cannot be proved negligent merely because there was lack of necessary care. Often cases test the well established principles of law. It does not happen often that a doctor is tried for murder, because doctors do not intend to kill their patients. Therefore, the guilty mind (mens rea) that needs to be proved in such cases test the Law. When doctors administer treatment to a patient, they do so in good faith for the patient’s benefit, and not with an intention to kill. For this reason Sections 87, 88, 89 and 92 of the Indian Penal Code provide immunity to the medical professionals. The onus of proof lies on the doctor. The doctor ought to prove that the treatment was done with the patient’s benefit in mind and in good faith.
The courts in India, following England’s practice are inclined to the paternalistic model of physician- patient relationship. Paternalism means “interference with a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs and interests or values of the person coerced”. This has been further supported by the famous Bolam principle, which states that a doctor cannot be held liable when he acted as any other established, and responsible medical man would act.
Defense provided to the doctors
The doctors may plead the following defenses when they are subjected to an allegation of medical negligence-
a) Where the doctor is confident that he had not been negligent in fulfilling his duty, he may simply deny the allegation.
b) Where the patient has been negligent in following the orders of the doctor. For eg: If the doctor had asked the patient to come in for frequent check ups and the patient did not comply with the orders resulting in the damage to his health, the doctor cannot be held liable in such a case.
c) Where the duty of the patient was delegated to a third party. In such a case the responsibility is on the person to whom the duty was delegated. However, if the doctor had been aware that the person to whom the duty was delegated was incapable, then the blame shall lie with the doctor. The doctor shall be liable for the duty of his staff if they are incapable. (Spring Meadows Vs Harjot Ahluwalia)
d) Where the question is whether there was an act of negligence or not. There is always an assumption of risk in treatment. Once a person consents to treatment voluntarily he cannot ask for legal action. This is best explained by the maxim “Volunti non fit injuria”. However, if somewhere during the procedure negligent act had been done then he can ask for action.
e) Where the complication is well known in the use of a drug. Sometimes certain drugs have some well known complications. If the necessary tests were conducted for the suitability of the drug and even after all that the complication occurred, the doctor cannot be held responsible for that.
f) Where the case has already been completed between the two parties. Once the case has been completed between the two parties, it cannot be filed again (Res Judicata- the thing has been decided).
The Doctrine of Res Ipsa Loquitor
“Res ipsa loquitor” means “things speak for themselves”. If a negligent act is done by a doctor he is to be held vicariously liable for the deed. In such cases the damage caused to the patient is so obvious that no proof as to the negligent act of the doctor is required. While discharging this burden, the plaintiff needs to satisfy the court of the truth in his allegations; after which the onus shifts to the defendant to prove his innocence. For the applicability of the maxim of Res Ipsa loquitor, the following three principles are of utmost importance:
a) The opposite party must have been in control of things;
b) Common norms suggesting that the injury in itself cannot happen without negligence;
c) The cause of incident must be unknown or unascertainable.
Some common examples as to when this principle is invoked are in cases where a wrong patient is treated or where the operation has been done (is) on a wrong part of the body.
Conclusion
To conclude, in view of the varying decisions of the Supreme Court from the above discussion, the norms and trends that are needed (one needs) to check the medical negligence (on) are listed below:
ü The surgeon must possess the required skills and knowledge that an average doctor ought to possess to undertake a particular treatment.
ü He should not have failed to overlook anything basic or important which a man of his profession, with ordinary prudence level would have done.
ü If out of the two choices in treatment the doctor picked the one which was acceptable to medical profession, he cannot be held liable for negligence merely because there was a better treatment available which he did not undertake.
After the Apex Court decision in the case of Jacob Matthew, it may be felt that the medical professionals have been given a free rein to do as they please. However, the Court had only reiterated what was already the judicial approach and reconfirmed its own judgment given in earlier judgments. But (However), the current trend has called for a system of internal and external standards to be set. The shift in the medical profession is being seen as a service that has been shifted to being seen as a business. Once the shift is complete, it would not be in the interest of the general public. Therefore, before the standards of the medicos change, an internal and external regulation system needs to be set up so as to keep a constant check on the medical professionals. It must be remembered that a doctor- patient relationship is a sacred relationship. Nowadays it has been under constant strain because the patient does not seem to trust the doctor. Therefore, it is a pre requisite for the doctors to behave in a helpful and a confident manner with the patient. If the patient is aware of what is involved in his treatment, he would share a different comfort level with his doctor. In order to achieve this, it is necessary to facilitate a good and a healthy relationship between a doctor and a patient.
At the same time its time the Court’s treated the doctors at par with other human beings instead of giving them special privileges. It often happens that doctors who actually indulge in a negligent act go scot free because of the special privilege that is provided to them. Doctors, like any other individual can make mistakes, except their mistake can cost us human lives; lives of the people who may mean the most to us.
