Medical profession is one of the oldest professions of humankind and is the most humanitarian one. Integral to the concept of any profession is a code of conduct, comprising the cardinal ethics that underscore the moral values that govern professional practice and is aimed at preserving its dignity. Medical Ethics underpins the values at the heart of the practitioner-client relationship. Medical negligence and malpractices by doctors are the dark clouds in health care where legal issues operate.

Negligence is a legal concept in the common law legal systems usually used to get compensation for injuries (not accidents). Negligence is a type of tort. The concept is used in criminal law as well. “Negligence” is not the same as “carelessness”, because somebody may use as much care as they are capable of, yet still fall below the level of competence expected of them. It can be loosely defined as conduct that is culpable for the reason that it falls short of what a reasonable person would do to protect another person from predictable risks of harm.

Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as ‘implied undertaking’ by a member of the medical profession that he would use a fair, reasonable and competent degree of skill.

Medical Negligence plays its game in strange manners,

Sometimes it toys with life; sometimes it gifts an “Unwanted Child”<!–[if !supportFootnotes]–>[1]<!–[endif]–>

In the present case, the State Government of Haryana launched a “Sterilisation Scheme.” In 1988, the respondent, Smt. Santra who was a poor labourer woman approached the Chief Medical Officer, Gurgaon, for her sterilisation. The sterilisation operation was carried out and a certificate to that effect was issued to her on 4^th February 1988 under the signatures of the Medical Officer, General Hospital, Gurgaon. Smt. Santra was assured that complete and successful sterilisation operation had been performed upon her and she would not conceive a child in future. But despite the operation, she conceived. When she contacted the Chief Medical Officer and other doctors of the General Hospital, Gurgaon, she was informed that she was not pregnant. Two months later when the pregnancy became perceptible, she again approached those doctors who then told her that her sterilisation operation was not successful. She requested for an abortion, but was advised not to go in for abortion as the same could prove fatal to her. She eventually gave birth to a female child. Smt. Santra already had seven children and the birth of a new child put her to unnecessary burden of rearing up the child as also all the expenses involved in the maintenance of that child, including the expenses towards her clothes and education. She filed a suit for recovery of Rs. 2 lakhs as damages for medical negligence, which was decreed for a sum of Rs. 54,000<!–[if !supportFootnotes]–>[2]<!–[endif]–> with interest at the rate of 12% per annum from the date of institution of the suit till the payment of the decretal amount. Two appeals were filed against this decree – one by the State of Haryana and one by Smt. Santra<!–[if !supportFootnotes]–>[3]<!–[endif]–> in the court of District Judge, Gurgaon, which were dismissed by Addl. District Judge, Gurgaon, by a common judgment dated 10^th May 1999. The second appeal filed by the State of Haryana was summarily dismissed by the Punjab & Haryana High Court on 3^rd August 1999. The State filed Special Leave Petition.

 

The operation related only to the right fallopian tube<!–[if !supportFootnotes]–>[4]<!–[endif]–> and the left fallopian tube was not touched<!–[if !supportFootnotes]–>[5]<!–[endif]–>, which indicates that ‘complete Sterilisation’ operation was not done. The act of Dr. Sushil Kumar Goyal<!–[if !supportFootnotes]–>[6]<!–[endif]–> shows that he did not perform his duty to the best of his ability and with due care and caution. He focussed attention to perform as many as operations as possible to build record and earn publicity.

The suit was contested by the State, who, besides taking up the technical pleas relating to non-maintainability of the suit on various grounds, denied in the written statement that there was any negligence on the part of the Medical Officer of the General Hospital, Gurgaon.<!–[if !supportFootnotes]–>[7]<!–[endif]–> State was held vicariously liable for the negligence of its officers in performing the operation and damages were awarded to the victim.

In the government-sponsored sterilization programme, which comes with attractive incentives, there are thousands of rural poor who feel cheated.<!–[if !supportFootnotes]–>[8]<!–[endif]–> The failed sterilization puts an enormous encumbrance on the already distressed economic capacity of the underprivileged parents.

Chapter 1

The questions to be dealt with are - What is negligence? What are the requirements for proving medical negligence? The questions have to be answered with special reference to cases of sterilization. Failure to exercise the degree of care expected of a person of ordinary prudence in protecting others from a risk of harm is negligence.<!–[if !supportFootnotes]–>[9]<!–[endif]–> “Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property…. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.”<!–[if !supportFootnotes]–>[10]<!–[endif]–>

Negligence has many manifestations—it may be active, collateral, comparative, concurrent, continued, criminal, gross, hazardous, passive, wilful or reckless or per se.<!–[if !supportFootnotes]–>[11]<!–[endif]–> The concept of negligence is used in Law of Torts, Criminal laws, Law of Contract and Consumer Protection Act differently in India.

It may render one civilly and sometimes criminally liable for resulting injuries.<!–[if !supportFootnotes]–>[12]<!–[endif]–> The doctrine of negligence does not require the elimination of all risk, but rather only foreseeable and unreasonable risk. Thus a higher standard applies to explosives manufacturers than to manufacturers of kitchen matches. The plaintiff must ordinarily prove the defendant’s negligence with a preponderance of evidence.<!–[if !supportFootnotes]–>[13]<!–[endif]–>

Scientific medical practice is a practice which is mentioned in standard text books or various issues of leading medical journals or distinguished by creditworthy brass of medical profession. In cases of medical negligence the outcome of the treatment is of secondary importance, but the method adopted is of primary and much greater importance. In case if doctor fails to follow one of the accepted methods & instead departs from the conventional course of treatment, the burden of proof lies upon the doctor to show that whether he had taken all proper care into account before deciding and whether he had conveyed the patient and taken his consent. There may be one or more perfectly proper standards, and if he followed one of these proper standards, he will not be considered negligent. In the present case the court has decided that in absence of gross mismanagement, liability of gross negligence will not be succeeded. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the outcome of surgery would always be beneficial for the person operated on. The only sureness which such a professional can give or can be understood to have given by deduction is that he is possessed, of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what the entire person approaching the professional can expect. Judged by this standard, a Professional may be held liable for negligence on one of two findings either he was not possessed of the necessary skill which he confessed to have possessed, or, he did not exercise, with reasonable competence the skill which he possessed. The criterion to be applied for judging whether the person charged has been negligent or not, would be that of an ordinary competent person practicing ordinary skill in that profession.

The Bolam Test<!–[if !supportFootnotes]–>[14]<!–[endif]–> which was evolved in Bolam vs. Friern Hospital Management Committee<!–[if !supportFootnotes]–>[15]<!–[endif]–> is widely accepted as decisive of the standard of care required by professionals and medical professionals in particular. It has been invariably cited with approval before courts in India and applied to as touchstone to test of pleas of medical negligence. Bolam test requires a professional that:

 

By and large law does not require of a professional man that he be a paragon combining qualities of polymath and prophet.<!–[if !supportFootnotes]–>[16]<!–[endif]–> The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and well-condensed one.<!–[if !supportFootnotes]–>[17]<!–[endif]–>^{, <!–[if !supportFootnotes]–>[18]<!–[endif]–>}

In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used. The Bolitho Test<!–[if !supportFootnotes]–>[19]<!–[endif]–> allows the judge to choose between two conflicting expert opinions and can reject one of those opinions if it is not “logically defensible”.

So, the principle which emerges is that a doctor who administers medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence.

In Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole,<!–[if !supportFootnotes]–>[20]<!–[endif]–> the Court held that a person who holds himself competent to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient.

In Indian Medical Association v. V.P. Shantha<!–[if !supportFootnotes]–>[21]<!–[endif]–> the principal issue which arose for decision by the Court was whether a medical practitioner renders ‘service’ and can be proceeded against for ‘deficiency in service’ before a forum under the Consumer Protection Act, 1986. The court held that professional men should possess certain minimal level of competency and should exercise reasonable care in the discharge of their duties. Generally, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or executing services.

In Poonam Verma v. Ashwin Patel<!–[if !supportFootnotes]–>[22]<!–[endif]–> a doctor registered as medical practitioner and entitled to practice in Homoeopathy only, prescribed an allopathic medicine to the patient. The patient died. The doctor was held negligent and liable to compensate the wife of the deceased, since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct totalled to negligence per se actionable in civil law.

In Achutrao Haribhau Khodwa v. State of Maharashtra,<!–[if !supportFootnotes]–>[23]<!–[endif]–> the Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and where more than one alternative course of treatment are available all alternatives are admissible.

In Jacob Mathew v. State of Punjab, 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. Then, probably the hospital may be liable in civil law but the accused cannot be proceeded against under Section 304A IPC<!–[if !supportFootnotes]–>[24]<!–[endif]–> on the parameters of Bolam’s test.

In Smt. Madhubala v. NCT of Delhi<!–[if !supportFootnotes]–>[25]<!–[endif]–>, the appellant got herself operated upon for sterilization in the Swami Dayanand Hospital, Shahdara, Delhi<!–[if !supportFootnotes]–>[26]<!–[endif]–> on 10^th November 1995. But in August 2000 she conceived a male child. She filed a suit for recovery of Rs. 4.5 lakhs as damages and interest thereon @ 18% p.a.  The suit was against three defendants, the Government of NCT of Delhi, the Union of India and the Chief Medical Officer of the hospital where the surgery was performed. The question before the court was whether the plaintiff was entitled to compensation on the ground of conceiving and delivering a male child even after her tubectomy? During arguments, the learned counsel for the appellant contended that the very fact that the appellant conceived even after having gone through sterilization was sufficient enough to establish negligence on the part of the hospital. Dr. (Mrs.) S B Mahanty, the surgeon had told and advised the appellant before and even after the surgery about the possibilities of pregnancy and that in case of irregular menstrual cycle, she should report to the hospital.  Admittedly, appellant did not so report.  She has further stated that there was no negligence, and on this aspect, she found support from the evidence of another doctor.  It is further in the evidence of a doctor that the court found that even where sterilization surgery is performed by best of doctors, the risk of conceivement and post-sterilization delivery remains 1-4 per thousand women undergoing sterilization surgery.  Furthermore, the “Consent and Application for Sterilization Operation” signed by the appellant inter alia states: “I also know that there are some chances of the failure of the operation for which Government hospital /operation surgeon will not be held responsible by me or my relatives or any other person whatsoever”. There was no evidence that the doctor concerned was negligent in performing her duty. Mere conception and delivery post-sterilization operation is no indication of negligence.  The appellant has thus failed to prove negligence on the part of the hospital or the doctor concerned.  The court said that the appellant was herself negligent as she did not report to the hospital on missing   the menstrual cycle. The appeal was consequently dismissed.

 

The question which is discussed in the chapter is whether the state would be liable for medical negligence done by a doctor working in a government hospital. Earlier consistent with the control test, a hospital authority was not held liable for the negligence of its staff in matters requiring professional skill.<!–[if !supportFootnotes]–>[27]<!–[endif]–> But with the change in the legal position that the control test is not decisive in all cases and it breaks down when applied to skilled and professional work, a hospital authority has now been held liable for the negligence of its professional staff.<!–[if !supportFootnotes]–>[28]<!–[endif]–> A hospital authority itself owes a duty to the patients which cannot be delegated and the authority is liable both primarily and vicariously for the negligence of its staff. On this principle the hospital authority may be held liable for breach of its primary duty when the negligence is of a person who cannot be called a servant of the authority e.g. visiting consultants and surgeons. The distinction earlier drawn between professional and ministerial or administrative duties has been disapproved.<!–[if !supportFootnotes]–>[29]<!–[endif]–>The state has been held negligent for an act of the staff of a government hospital.<!–[if !supportFootnotes]–>[30]<!–[endif]–>

In the present case the state pleaded that it was not liable even vicariously for any lapse on the part of the doctor who performed the operation. Learned Counsel appearing on behalf of the State of Haryana had contended that the negligence of the Medical Officer in performing the unsuccessful Sterilisation operation upon Smt. Santra would not bind the State Govt. and the State Govt. would not be liable vicariously for any damages to Smt. Santra. The contention as to the vicarious liability of the State for the negligence of its officers in performing the Sterilisation operation was rejected in view of the law settled by Supreme Court in N. Nagendra Rao & Co. v. State of Andhra Pradesh,<!–[if !supportFootnotes]–>[31]<!–[endif]–> Common Cause, A Regd Society v. Union of India<!–[if !supportFootnotes]–>[32]<!–[endif]–> and Achutrao Haribhau Khodwa v. State of Maharashtra.<!–[if !supportFootnotes]–>[33]<!–[endif]–> Vicarious liability of the State on account of medical negligence of a doctor in a Govt. hospital has been recognized in all the above cases. The theory of sovereign immunity has been rejected too.

The Supreme Court in Nilbati Behra v. State of Orissa<!–[if !supportFootnotes]–>[34]<!–[endif]–> holds that in view of the fundamental right to life (Article 21 of the Constitution<!–[if !supportFootnotes]–>[35]<!–[endif]–>) the Government cannot claim “sovereign immunity” for liability for the negligence of its employees.

The right to health and health care is protected under Article 21 of the Constitution of India, as a right to life, breach of which can move the Supreme Court on High Court through writ petition. Practice of medicine is capable of rendering great service to the society provided due care, sincerity, efficiency and skill are observed by doctors. When doctors perform their duties towards the patient negligently in a Government hospital, the servants of the state violate the fundamental right of the patient, guaranteed under Article 21 of the Constitution and the state is vicariously liable.

Chapter 3

The question to be dealt with is who has to bear the expenses in bringing up the “unwanted child.” Also, whether the parents can ask for damages because of birth of unwanted child by medical negligence by the doctor needs to be taken under consideration. The last question to be answered is how much damages does the court award in such cases. The domestic legal scenario on these questions appears to be mute, except one or two isolated decisions of the High Courts. While considering the question of “failed Sterilisation”, it is stated in Halsbury’s Law of England as under:

“Where the defendant’s negligent performance of a Sterilisation operation results in the birth of a healthy child public policy does not prevent the parents from recovering damages for the unwanted birth, even though the child may in fact be wanted by the time of its birth. Damages are recoverable for personal injuries during the period leading up to the delivery of the child, and for the economic loss involved in the expense of losing paid occupation and the obligation of having to pay for the upkeep) and care of an unwanted child. Damages may include loss of earnings for the mother, maintaining the child (taking into account child benefit), and pain and suffering to the mother.”<!–[if !supportFootnotes]–>[36]<!–[endif]–>

In Udale v. Bloomshury Area Health Authority<!–[if !supportFootnotes]–>[37]<!–[endif]–>, a woman who had approached Hospital Authorities for Sterilisation was awarded damages not only for pain and suffering on account of pregnancy which she developed as a result of failed sterilisation, but also damages for the disturbance of the family finances, including the cost of layette and increased accommodation for the family. The Court, nevertheless, did not allow damages for future cost of the child’s upbringing upto the age of 16 years, on a consideration of public policy. The Court held that the public policy necessitated that the child should not learn that the Court had announced its life to be a mistake. The Court further held that the joy of having a child and the pleasure deduced in raising a child have to be set off against the monetary costs of upbringing the child.

The doctrine of public policy, nevertheless, was not complied in Emeh v. Kensington and Chelsea and Westminster Area Health Authority<!–[if !supportFootnotes]–>[38]<!–[endif]–> and it was held that there was no rule of public policy which prevented recovery of damages for pain and suffering for maintaining the child.

In Thake v. Maurice<!–[if !supportFootnotes]–>[39]<!–[endif]–>, a vasectomy was performed on the husband who was told subsequent to the operation that contraceptive precautions were not necessary. Nonetheless, a child was born to him and damages for the child’s upkeep upto the seventeenth birthday were awarded. The Court of Appeal in its judgment held that the joy of having a child could be set off against the trouble and care in the upbringing of the child but not against prenatal pain and distress for which damages had to be awarded.

In Benarr v. Kettering Health Authority<!–[if !supportFootnotes]–>[40]<!–[endif]–>, which related to a negligently performed vasectomy operation, damages were awarded for the future private education of the child. In Allen v. Bloomsbury Health Authority<!–[if !supportFootnotes]–>[41]<!–[endif]–>, damages were awarded in the case of negligence in the termination of the pregnancy and it was held that these damages will include general damages for pain and discomfort associated with the pregnancy and birth as also damages for economic loss being the financial expenses for the unwanted child in order to feed, clothe and care for and possibility to educate the child till he becomes an adult. On these considerations, a general and special damage including the cost of maintaining the child until the age of 18 were allowed. The judgment was followed in two other cases, namely, Crouchman v. Burke<!–[if !supportFootnotes]–>[42]<!–[endif]–> and Robinson v. Salford Health Authority.<!–[if !supportFootnotes]–>[43]<!–[endif]–> In a case in Scotland, namely, Allan v. Greater Glasgow Health Board<!–[if !supportFootnotes]–>[44]<!–[endif]–>, public policy considerations were rejected and cost of rearing the child was also awarded.

In three cases in the United States of America, namely Szekeres v. Robinson<!–[if !supportFootnotes]–>[45]<!–[endif]–>; Johnson v. University Hospitals of Cleveland<!–[if !supportFootnotes]–>[46]<!–[endif]–> and Public Health Trust v. Brown<!–[if !supportFootnotes]–>[47]<!–[endif]–>, damages were not allowed for rearing up the child. In the first of these three cases, the Supreme Court of Nevada refused to award damages for the birth of an unwanted child even though the birth was partially attributable to the negligent conduct of the doctor attempting to prevent the child birth. In the second case, it was held that the parents could recover only the damages for the cost of the pregnancy, but not the expense of rearing an unwanted child. The basis of the judgment appears to be the public policy that the birth of a normal, healthy child cannot be treated to be an injury to the parents. In the third case in which the claim was preferred by a woman alleging that the Sterilisation operation performed upon her was negligently done which resulted in pregnancy for a child which she never wanted, the Supreme Court of Florida was of the opinion that it was a matter of universally-shared emotion and sentiment that the tangible but all-important, incalculable but invaluable ‘benefits’ of parenthood far outweigh any of the mere monetary burdens involved. However, in another case arising in the united States, the Supreme Court of New Mexico in Lovelace Medical Center v. Mendez<!–[if !supportFootnotes]–>[48]<!–[endif]–> allowed damages in the form of reasonable expenses to raise the child to majority as it was of the opinion that the prime motivation for Sterilisation was to conserve family resources and since it was a failed Sterilisation case, attributable to the negligent failure of Lovelace Medical Center, the petitioner was entitled to damages. In a South African case Administrator, Natal v. Edouard<!–[if !supportFootnotes]–>[49]<!–[endif]–>, damages were awarded for the cost of maintaining the child in a case where Sterilisation of the wife did not succeed. It was found in that case that the wife had submitted for Sterilisation for socio-economic reasons and in that situation the father of the child was held entitled to recover the cost likely to be incurred for maintaining the child. In a Newzealand case in L v. M<!–[if !supportFootnotes]–>[50]<!–[endif]–>, the court of appeal refused to allow cost of rearing a child. In a case from Australia, namely, CES v. Superclinics (Australia) Pvt. Ltd.<!–[if !supportFootnotes]–>[51]<!–[endif]–>, the expenses involved in rearing the child were not allowed. In this case, a woman who was pregnant claimed damages for loss of the opportunity to terminate the pregnancy which Doctors had failed to diagnose. The claim was dismissed by the trial judge on the ground that abortion would have been unlawful. J. Meagher discounted the claim altogether on the ground of public policy, but the other Judge, Kirby was of the opinion that the woman was entitled to damages both for the pain and suffering which she had to undergo on account of pregnancy as also for the birth and the cost of rearing the child. But he thought that it would be better to offset against the claim of damages, the value of the benefits which would be derived from the birth and rearing of the child. He was of the opinion that the matter of setting off of nett benefits against the nett injury incurred would depend upon the facts of each case. In the result, therefore, he agreed with Priestly J., that the ordinary expenses of rearing the child should be excluded. The point in the present case is that the plaintiff chose to keep her child. The anguish of having to make the choice is part of the damage caused by the negligent breach of duty, but the fact remains, however, compelling the psychological pressure on the plaintiff may have been to keep the child, the opportunity of choice was in my opinion real and the choice made was voluntary It was this choice which was the cause, in my opinion, of the subsequent cost of rearing the child. From the above, it would be seen that the courts in the different countries are not unanimous in allowing the claim for damages for rearing up the unwanted child born out of a failed Sterilisation operation. In some cases, the courts refused to allow this claim on the ground of public policy, while in many other, the claim was offset against the benefits derived from having a child and the pleasure in rearing up that child. In many other cases, if the Sterilisation was undergone on account of social and economic reasons, particularly in a situation where the claimant had already had many children, the court allowed the claim for rearing up the child. In State of M.P. and Ors. v. Asharam<!–[if !supportFootnotes]–>[52]<!–[endif]–>, the High Court allowed the damages on account of medical negligence in the performance of a family planning operation on account of which a daughter was born after fifteen months of the date of operation.

In the present case Smt. Santra was a poor lady who already had seven children. She was already under considerable monetary burden. The unwanted child born to her created additional burden for her on account of the negligence of the doctor who performed Sterilisation operation upon her and, therefore, she was entitled to claim full damages from the State Govt. to enable her to bring up the child at least till she attains puberty.

 

Conclusion

Inferences from the case

<!–[if !supportLists]–>· <!–[endif]–>Implied Undertaking - every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill.

<!–[if !supportLists]–>· <!–[endif]–>When a doctor is consulted by a patient, he owes certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment - a breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from the doctor

<!–[if !supportLists]–>· <!–[endif]–>There may be one or more perfectly proper standards of doing an operation, and if the surgeon/doctor conforms to one of these proper standards, then he will not be negligent

<!–[if !supportLists]–>· <!–[endif]–>The state would be held vicariously liable for the acts done by its employees during the course of employment

<!–[if !supportLists]–>· <!–[endif]–>The state will have to give damages to the victim of medical negligence in a government hospital - expenses awarded for rearing up the child and for her maintenance can be legally decreed as damages to negligence

Owing to the recent developments in consumerism and human rights the cases regarding the fixation of liability become very typical. Consumer laws may be a great help provided the consumers must be aware of their rights. Investigation is yet another area where the interest of the patient is sacrificed to the greed of the care giver. Headache is one such common symptom, which may range from a tension headache to a brain tumour. It is not uncommon for doctors to request for magnetic resonance imaging (MRI) of the brain for the least of the indications, largely because of the attractive commission (kickback) that they would get from the procedure. These do not qualify under the wilful negligence to be challenged in a court of law, but are they in the best interest of the patient? Is there any law to prevent such unethical practices? A recent World Bank study has revealed that expenditure towards a health event in the family is the second most common cause of impoverishment in India. Among those who seek medical help in India, about 40 per cent have been pushed into poverty. In the recent times, professions are developing a tenancy to forget that the self-regulation which Is at the heart of their profession is a privilege and not a right and a profession obtains this privilege In return for an implicit contract with society to provide good competent and accountable service to the public. The self-regulator standards in the profession have shown a decline and this can be attributed to the overwhelming Impact of commercialization of the sector. There are reports against doctors of exploitative medical practices, misuse of diagnostic procedures, brokering deals for sale of human organs, etc. It cannot be denied that black sheep have entered the profession and that the profession has been unable to isolate them effectively. Two basic propositions laid down in law regarding liability for negligence are: firstly, “Breach of Duty” to care and secondly, standard of care, i.e. the practitioner must bring to his task a reasonable degree of skill, knowledge and exercise a reasonable degree of care with caution. Supreme Court has made necessary guidelines for protection in order to secure life and health of individuals.

Bangia, R. K., The Law of Torts 18^th edition (2005, Allahabad Law Agency, Faridabad)

Clinical Negligence: An illustration of the operation of negligence available online at www.routledgelaw.com/textbooks/9780415458467/downloads/clinical-negligence.ppt

 

Gandhi, B. M., Law of Torts 3^rd edition (2006, Eastern Book Company, Lucknow)

 

Iyer Ramaswamy, The Law of Torts 8^th edition (Ed. S. K. Desai and Kumud Desai 1986, N. M. Tripathi Pvt. Ltd., Bombay)

 

Mahapatra, Dhananjay, Failed sterilization puts burden on poor parents, The Times of India, July 14^th, 2008, available online at http://timesofindia.indiatimes.com/India/Failed_ sterilization_puts_burden_on_poor_parents/articleshow/3229664.cms

Negligence, Wikipedia available at http://en.wikipedia.org/wiki/Negligence

 

Pillai, P. S. A., Law of Tort 9^th Edition (2004, Eastern Book Co., Lucknow)

Ratanlal & Dhirajlal’s The Law of Torts (25^th edition, ed. Justice G.P. Singh, 2006, Wadhwa and Company, Nagpur)

Sterilisation operation – whether Medical Negligence AIR 2004 Journal 291

 

Street on Torts 11^th Edition (Ed. John Murphy, 2003, Lexis Nexis, London)

Winfield and Jolowicz on Tort 17^th edition (Ed. W. V. H. Rogers, 2006, Sweet & Maxwell, London)

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Tagged as: Medical Negligence, Negligence, Sterilization, Vicarious Liability