Reproduced
from: http://www.indialegallive.com/medical-negligence/doctors-liability-starting-at-the-top-66796,
published June 11, 2019
In
a case where a couple lost their baby girl after she was given wrong injection,
the National Consumer Disputes Redressal Commission holds that a doctor is
“vicariously liable” for the team that assists him
A doctor is
vicariously liable for the negligence committed by members of his team which
was assisting in the treatment, the National Consumer Disputes Redressal
Commission (NCDRC) held recently while dismissing an appeal. This decision is
in tune with the Medical Council of India’s ethics regulation which
says, “In the case of running of a nursing home by a physician and
employing assistants to help him/her, the ultimate responsibility rests on the
physician.”
Also by virtue of the
doctrine of vicarious liability, an employer is liable for an employee’s
negligent actions if they were committed in the course or scope of the
employee’s employment or are closely connected with what the employee is
authorised by the employer to do. Also the liability can be respondeat
superior, which means “let the master answer.” When respondeat
superior applies, an employer will be liable for an employee’s
negligent actions or omissions that occur during the course and scope of the
employee’s employment. This means that the employee must be performing duties
for the employer at the time of the negligence for the employer to be held
liable under respondeat superior. So if in a doctor’s team, the
junior is doing the work of senior, then it is assumed that the senior is doing
that work.
The NCDRC verdict came
in a case regarding the death of a three year old child named Arshiyai in 2004,
while undergoing treatment for cancer at Mohan Dai Owal Cancer Treatment and
Research Foundation Hospital, Ludhiana, under the supervision of Dr Raman
Arora.
Referring to the SC
decision in Smt. Savita Garg Vs. Director, National Heart (2004) 8 SCC
56, the NCDRC held that the onus is on the hospital and the doctor to
explain the exact line of treatment rendered which resulted in the incident. In
the instant case, there is no explanation forthcoming as to why the patient,
who had substantially improved after three cycles that Chemotherapy had shown
complete deterioration after 05.07.2004, the NCDRC said.
It further said :
“Having regard to what the Supreme Court has laid down about ‘ Duty of Care’ to
be followed by medical professionals, viewed from any angle it cannot be
construed that ‘ Duty of Care’ of the treating Doctor/ head of the department,
who is, in this case, has written the ‘Protocol’, ‘ Ends’ with giving the
Prescription. At the cost of repetition, we are of the considered view that the
Doctor is vicariously liable for the acts of his team which assists him in
every sphere in rendering treatment to the Patient,” the Commission added.
Based on the decision
of Supreme Court in Achutrao Haribhau Khodwa vs. State of Maharashtra
& Ors., 1996 (2) SCC 634, the Hospital was also held vicariously
liable for the acts of the Doctors.
The judgment also said
that the state government is vicariously liable for negligence of its
employees “Even if it be assumed that it is the second operation performed by
Dr. Divan which led to the peritonitis, as has been deposed to by Dr.
Purandare, the fact still remains that but for the leaving of the mop inside
the peritonial cavity, it would not have been necessary to have the second
operation. Assuming even that the second operation was done negligently or that
there was lack of adequate care after the operation which led to peritonitis,
the fact remains that Dr. Divan was an employee of respondent no.1 and the
State must be held to be variously liable for the negligent acts of its
employees working in the said hospital.”, it said. Once death by negligence in
the hospital is established, as in the case here, the State would be liable to
pay the damages. In our opinion, therefore, the High Court clearly fell in
error in reversing the judgment of the trial court and in dismissing the
appellants’ suit.”
However negligence as
a Crime is not covered and has to be dealt with person in fault. Negligence
under tort is determined on the extent of the loss caused whereas negligence
under criminal law is dependent on the degree or amount of negligence. Courts
have repeatedly held that the burden of proving criminal negligence rests
heavily on the person claiming it. Criminal law requires a guilty mind. If
there is a guilty mind, a practitioner will be liable in any case.
But if, under the
criminal law, rashness and recklessness amount to crime, then also a very high
degree of rashness would be required to prove charges of criminal negligence
against a medical practitioner. The element of criminality is introduced not
only by a guilty mind, but by the practitioner having run the risk of doing
something with recklessness and indifference to the consequences. This
negligence or rashness or must be ‘gross’ in nature.
In the Jacob
Mathew case the apex court has said: “In the case, the patient, a
young man with no history of any heart ailment, was subjected to an operation
performed by Dr. Suresh Gupta for nasal deformity. The operation was neither
complicated nor serious. The patient died. On investigation, the cause of death
was found to be “not introducing a cuffed endotracheal tube of proper size as
to prevent aspiration of blood from the wound in the respiratory passage”. The
Bench formed an opinion that this act attributed to the doctor, even if
accepted to be true, could be described as an act of negligence as there was
lack of due care and precaution. But, the Court categorically held “for this
act of negligence he may be liable in tort, his carelessness or want of due
attention and skill cannot be described to be so reckless or grossly negligent
as to make him criminally liable”.
“In order to hold the
existence of criminal rashness or criminal negligence it shall have to be found
out that the rashness was of such a degree as to amount to taking a hazard
knowing that the hazard was of such a degree that injury was most likely imminent.
The element of criminality is introduced by the accused having run the risk of
doing such an act with recklessness and indifference to the consequences.”
Lord Atkin in his
speech in Andrews v. Director of Public Prosecutions, [1937] A.C. 576,
stated, “Simple lack of care such as will constitute civil liability is not
enough; for purposes of the criminal law there are degrees of negligence; and a
very high degree of negligence is required to be proved before the felony is
established.”
Lord Porter said in
his speech in the same case “A higher degree of negligence has always been
demanded in order to establish a criminal offence than is sufficient to create
civil liability.”
Apart from criminal
negligence vicarious liability also will not be held if it can be proven that
the assistant in question has not followed the instructions correctly or did
any action wilfully and wrongfully and disobeyed the orders
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
