This article is written by Shaily Garg, a Fourth year B.Com. LLB (Hons.) Student of University Institute of Legal Studies, Panjab University, Chandigarh.
Professionals akin to lawyers, doctors, and architects are the persons purporting some exceptional ability and aptitude which is required to be exercised with a reasonable degree of care and caution. The Apex Court in Jacob Mathew v. State of Punjab explained that a doctor cannot and doesn’t guarantee that the results of surgery would invariably be beneficial, abundant less to the extent of 100 percent for the person operated on. The sole assurance which might be given by such professionals that they will exercise their skills with sensible competence. This is all that the individual approaching the professional can expect. In a circumstance that involves the requirement of special skill or aptitude, the test to ascertain negligence on their part is the standard of the ordinary skilled man practicing and professing to have that special aptitude. A professional person should command the corpus of knowledge that structures part of the professional equipment of the ordinary member of his profession.
What is Medical Negligence?
Medical negligence is a blend of two words i.e. Medical and Negligence. The later word exclusively depicts the significance, though the meaning of negligence has not been portrayed properly it is an act recklessly done by a person resulting in foreseeable damages to the other. Negligence is the breach of duty prompted by omission to do something which a reasonable man directed 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. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence chargeable to the person sued. The essential components of negligence are duty, breach, and resulting damage. However, a simple lack of care, an error of judgment, or an accident, is not evidence of negligence on the part of a medical professional. If a doctor approaches a practice adequate to the medical profession of that present day, he cannot be held liable for negligence merely because of the accessibility of a better alternative course or technique of treatment.
Medical practitioners or professionals are held accountable for negligence on two premises: First, either they were not possessed of the requisite skill which they claimed to have possessed and second, they did not perform, with reasonable competence in the given case, the skill which they own. The possibility of the highest level of proficiency or skill in the medical branch is minimal and hence, this cannot be made the yardstick for determining the performance of the professional proceeded against on indictment of negligence.
Accident while medical or surgical treatment has a wider meaning. Ordinarily, an accident means any unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated. In the instant case of Jacob Mathew v. State of Punjab, one late Jiwan Lal Sharma was admitted in the CMC Hospital, Ludhiana on 15-2-1995. On 22-2-1995, he felt difficulty in breathing. There being no oxygen cylinder accessible for 5 to 7 minutes, he died. The doctors also turned up after 20 to 25 minutes, when approached by the nurse. The Court, however, held it a case of non-availability of the oxygen cylinder and not of any negligence on the part of the accused doctors. The Court, thus, held that the hospital might be held liable in civil law.
Duty in Medical Professional
Medical practitioners having the requisite skill and knowledge must exercise it with a reasonable degree of care in the conduct of their duties. If the specialist doctor does not care to address a patient admitted in the emergency ward of a hospital and the patient dies, the doctor would be liable to pay compensation.
In Sishir Rajan Saha v. State of Tripura, the petitioner’s son, Ashim Saha while coming from Agartala to Udaipur on a scooter encountered an accident. He was admitted to the emergency ward of the G.B. Hospital, Agartala. The Senior Specialist Doctor, Dr. P. Roy was not available in the hospital. He was frequently called to attend to the patient. He was busy attending to his private patients and did not mind coming to the hospital to attend to the accident victim. Ashim Saha succumbed to his injuries. Dr. P. Roy was held liable to pay Rs. 1,25,000 as compensation for the death of the deceased.
When a medical practitioner addresses his patient, he owes him the following duties of care:
- A duty of care in determining whether to undertake the case;
- A duty of care in examining what treatment to give; and
- A duty of care in the administration of the treatment.
A breach of any of the above-mentioned duties gives a right of action for negligence to the patient.
In Jagdish Ram v. State of Himachal Pradesh, the patient was taken for a surgical procedure for undergoing tubectomy operation, without testing the adverse effect of anesthesia to be administered. Due to an overdose of anesthesia, her death occurred. The reaction of anesthesia and the dose of anesthesia administered were not recorded on the treatment chart of the patient. Acts of the doctors were actionable in tort and well held not justified.
Negligence and Compensation
In India, the Supreme Court of India had relaxed the norms for the medical faculty regarding criminal liability for medical negligence with the aid of prefixing the requirement of “gross” medical negligence. However, the court has acknowledged the culpability of doctors through the process of civil liability in which the victim or the family of the victim is awarded exorbitant compensations.
The introduction of high compensation awards for medical deficiency claims in India has evolved apprehensive speculation related to the result of doctor’s practice in medicine within India and how this process translates into rising costs for the patients. While some presume a consequent rise in frivolous litigation, others put forward the point that the healthcare sector should be governed with more stringent laws and that a huge amount of compensation will propel doctors to not be negligent any more towards their patients. The way recent cases are being heard and awarded huge compensations, there certainly lies the uncertainty of whether this encourages the increase in medical negligence litigation and the practice of defensive medicine, or there is the need to modify how medical negligence issues are currently being addressed in India.
Moreover, India’s healthcare system is accountable for and regulates private hospitals which include individual and corporate, public, and not-for-profit hospitals within its framework. In addition to these, the Indian government is also responsible to ensure universal and all-time access to healthcare to the general public through its public sector. It is, therefore, important for the judiciary to stabilize the interests, rights, and duties of all the parties concerned in a case.
It is not stated that doctors are negligent or irresponsible but while performing the duty which requires a lot of patience and care, often many practitioners fail or breach their responsibility towards the patient. Medicine which is one of the noblest professions requires setting a realm that can benefit the victims of various diseases. Many doctors even the specialist occasionally neglects small things to be taken care of while practicing which may result in vandalism to the patients that could have been avoided or sometimes even the death of the patients.
This type of professional negligence needs more attention than to comprehend in other laws or statutes. An independent and distinctive legislature should be set up to govern the malpractice. Recently, in the case of Krishna Iyer v. State of Tamil Nadu and Others, the Apex Court awarded a compensation of 1.8 crores on July 1, 2015, as she lost her eyes in 1996. This is the highest amount of compensation awarded in India. Many activists and the victims of medical negligence have been asserting to get redressal against malafied acts of medical practitioners and doctors. Not just for medicine, the law shall be made applicable to all the professionals practicing in different areas that require a requisite amount of skill and duty of care. People in our country are already victims of many diseases and are dying due to the same, let’s make efforts to reduce these deaths and focus on improvising the profession so that people do not die in the place where they come to get healed.
 AIR 2005 SC 3180.
 R.K. Bangia, Law of Torts 329 (Allahabad Law Agency, Faridabad, 20th edition).
 Black Law’s Dictionary, 7th Edition.
 AIR 2002 Guwahati 102
 Dr. L.B. Joshi v. Dr. T.B. Godbole, AIR 1989 P&H 183, at 185.
 AIR 2007 (NOC) 2498 (HP).
 2015 STPL(Web) 1239 SC