“7. In order to appreciate the opinion of the
NCDRC, it would be appropriate to lay down the legal principles which would
apply in cases of medical negligence.
8. ‘Negligence’ has been defined in the Halsbury’s
Laws of England, 4th Edn., Vol. 26 pp.17-18 and extracted in Kusum Sharma
& Ors. v. Batra Hospital & Medical Research Centre & Ors. as
under:
“22. Negligence. – Duties owed to patient. A person
who holds himself out as ready to give medical advice or treatment impliedly
undertakes that he is possessed of skill and knowledge for the purpose. Such a
person, whether he is a registered medical practitioner or not, who is
consulted by a patient, owes him certain duties, namely, a duty of care in
deciding whether to undertake the case; a duty of care in deciding what
treatment to give; and a duty of care in his administration of that treatment.
A breach of any of these duties will support an action for negligence by the
patient”
9. A fundamental aspect, which has to be kept in
mind is that a doctor cannot be said to be negligent if he is acting in
accordance with a practice accepted as proper by a reasonable body of medical
men skilled in that particular art, merely because there is a body of such
opinion that takes a contrary view (Bolam v. Friern Hospital Management
Committee). In the same opinion, it was emphasised that the test of
negligence cannot be the test of the man on the top of a Clapham omnibus. In
cases of medical negligence, where a special skill or competence is attributed
to a doctor, a doctor need not possess the highest expert skill, at the risk of
being found negligent, and it would suffice if he exercises the ordinary skill
of an ordinary competent man exercising that particular art. A situation, thus,
cannot be countenanced, which would be a disservice to the community at large,
by making doctors think more of their own safety than of the good of their
patients.
10. This Court in another judgment in Jacob
Mathew v. State of Punjab dealt with the law of negligence in respect of
professionals professing some special skills. Thus, any individual approaching
such a skilled person would have a reasonable expectation of a degree of care
and caution, but there could be no assurance of the result. A physician, thus,
would not assure a full recovery in every case, and the only assurance given,
by implication, is that he possesses the requisite skills in the branch of the
profession, and while undertaking the performance of his task, he would
exercise his skills with reasonable competence. Thus, a liability would only
come, if (a) either the person (doctor) did not possess the requisite skills,
which he professed to have possessed; or (b) he did not exercise, with
reasonable competence in a given case, the skill which he did possess. It was
held not to be necessary for every professional to possess the highest level of
expertise in that branch in which he practices. In the said opinion, a reference
was, once again, made to the Halsbury’s Laws of England as under:
“To establish liability on that basis it must be
shown (1) that there is a usual and normal practice; (2) that the defendant has
not adopted it; and (3) that the course in fact adopted is one no professional
man of ordinary skill would have taken had he been acting with ordinary care.”
11. In Hucks v. Cole, Lord Denning speaking
for the Court observed as under:
“A medical practitioner was not to be held liable
simply because things went wrong from mischance or misadventure or through an
error of judgment in choosing one reasonable course of treatment in preference
of another. A medical practitioner would be liable only where his conduct fell
below that of the standards of a reasonably competent practitioner in his
field.”
12. In para 89 of the judgment in Kusum Sharma
& Ors the test had been laid down as under:
“89. On scrutiny of the leading cases of medical
negligence both in our country and other countries specially the United Kingdom,
some basic principles emerge in dealing with the cases of medical negligence.
While deciding whether the medical professional is guilty of medical negligence
following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by 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.
II. Negligence is an essential ingredient of the offence. The
negligence to be established by the prosecution must be culpable or gross and
not the negligence merely based upon an error of judgment.
III.
The medical professional is expected to bring 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
judged in the light of the particular circumstances of each case is what the
law requires.
IV.
A medical practitioner would be liable only where
his conduct fell below that of the standard so far reasonably competent
practitioner in his field.
V. In the realm of diagnosis and treatment there is scope
for genuine difference of opinion and one professional doctor is clearly not
negligent merely because his conclusion differs from that of other professional
doctor.
VI.
The medical professional is often called upon to
adopt a procedure which involves higher element of risk, but which he honestly
believes as providing greater chances of success for the patient rather than a
procedure involving lesser risk but higher chances of failure. Just because a
professional looking to the gravity of illness has taken higher element of risk
to redeem the patient out of his/her suffering which did not yield the desired
result may not amount to negligence.
VII.
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.
VIII. It would not be conducive to the efficiency of the
medical profession if no doctor could administer medicine without a halter
round his neck.
IX.
It is our bounden duty and obligation of the civil
society to ensure that the medical professionals are not unnecessarily harassed
or humiliated so that they can perform their professional duties without fear
and apprehension.
X. The medical practitioners at times also have to be saved
from such a class of complainants who use criminal process as a tool for
pressurizing the medical professionals/hospitals particularly private hospitals
or clinics for extracting uncalled for compensation. Such malicious proceedings
deserve to be discarded against the medical practitioners.
XI.
The medical professionals are entitled to get
protection so long as they perform their duties with reasonable skill and
competence and in the interest of the patients. The interest and welfare of the
patients have to be paramount for the medical professionals.”
Source: Vinod Jain vs
Santokba Durlabhji Memorial Hospital & Anr (Civil Appeal No. 2024 of
2019 Arising out of SLP(C) No.32721/2017, dated February 25, 2019)
Dr KK
Aggarwal
Padma
Shri Awardee
President
Elect Confederation of Medical Associations in Asia and Oceania (CMAAO)
Group
Editor-in-Chief IJCP Publications
President
Heart Care Foundation of India
Past
National President IMA
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