The Medical Negligence- facts
Medical negligence(Malpraxis)
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The omission to do something which a reasonable person could do or doing something which a reasonable person would not do. So, it can be act of omission or act of commission.
A doctor must possess reasonable degree of proficiency and he must apply it while treating the patient. A highly qualified doctor will be held negligent if he fails to apply his greater knowledge with sufficient degree of care. Conversely an inexperienced doctor may be negligent if he attempts to do some procedure, which is beyond his capability except in an emergency.
The plaintiff must prove each of these elements in a case of negligence by a preponderance of the evidence.
1. Duty - the duty of care
Whenever a healthcare provider agrees to treat or supply medical services to a patient who requests treatment, that doctor has a duty to supply care to that patient. A doctor and a patient must set up a relationship; otherwise, no duty exists.
2. Deviation from the standard of care
Proving deviation usually requires expert witness testimony. Such experts will include other healthcare professionals who can describe the normal medical standard and what they would have done under the circumstances.
3. Direct cause of the injury
The plaintiff must show that the healthcare professional's deviation, and no other, intervening event, caused the plaintiff's injuries.
4. Damages
Finally, a plaintiff must show that negligence caused damages.
Indian Medical Association vs. V.P. Shantha & Ors, 1995
Considering the increasing number of medical negligence cases, complaints had been filed before the consumer courts seeking compensation under the Consumer Protection Act, 1986. There was ambiguity on the issue of whether doctors, hospitals, and medical practitioners fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Act, thereby recognizing patients as ‘consumers’ and giving them the right to approach the consumer courts to seek compensation.
These issues were subject to consideration in a series of decisions delivered by various High Courts and National Consumer Courts, which gave contrasting and conflicting interpretations. Writ Petitions and Special Leave Petitions were filed before the Supreme Court against these decisions and judgments.
In 1995, the Supreme Court delivered a historic decision in case of in 1995; the Supreme Court delivered a historic decision in the case of Indian Medical Association v VP Shantha which brought the medical profession within the ambit of a ‘service’ as defined in Section 2(1) (o) of the Consumer Protection Act, 1986 and clarified the earlier decisions.
Balam test- Bolam v Friern Hospital Mangement Committee, 1957
John Hector Bolam suffered from depression, and in 1954 he voluntarily admitted himself to Friern Hospital, a mental health institution in north London. He agreed to undergo Electroconvulsive therapy, a common treatment for depression.
He received the treatment without muscle relaxants. He was not restrained in any way, except for the fact that nurses oversaw his treatment. While Electroconvulsive therapy Mr Bolam experienced violent muscle spasms, causing him to fracture acetabulum. In response, he sued the Friern Hospital Management Committee.
He claimed that if he had warned of the risks, he would not have undergone the procedure. The doctors and nurses had been negligent in not providing him with a muscle relaxant. The doctors and nurses had been negligent in not restraining him.
The judge heard evidence from expert witnesses, who noted the following.
First, in relation to the matter of warning and risk, it was not widespread practice at that time for doctors to inform their patients about the risks of a procedure.
Second, as far as negligence was concerned, the Expert Witnesses gave a range of different opinions about whether they themselves would have recommended the use of muscle relaxants or restraint.
The true test for negligence in diagnosis or treatment on the part of a doctor is whether he has proved guilty of such failure as no doctor of ordinary skill level would be guilty of if he is acting with ordinary care. At least one other medical professional with an ordinary level of skill would have acted in the same way in delivering an ordinary level of care. If he has acted by a practice accepted by a responsible body of medical men skilled in that field, he is not guilty.
Jacob Mathew v. State of Punjab, 2005
In a landmark judgment of the Supreme Court of India the judgment stipulates the guidelines to be followed before launching a prosecution against a doctor for negligence. On February 15, 1995, the informant's father, was admitted as a patient in the private ward of a hospital. On February 22, 1995, at about 11 p.m., the patient felt difficulty in breathing. The complainant's elder brother, who was present in the room, contacted the duty nurse, who in turn called a doctor to attend to the patient. No doctor turned up for 20-25 minutes. Then doctors came to the room of the patient. An oxygen cylinder was brought and connected to the mouth of the patient, but the breathing problem increased further. The patient tried to get up, but the medical staff asked him to remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. Son of the patient went to the adjoining room and brought a gas cylinder. However, there was no arrangement to make the gas cylinder functional and meanwhile, 5-7 minutes were wasted. By this time, another doctor came and declared that the patient was dead.
On the above said report, an offence under Sections 304-A and 34 of the Indian Penal Code was registered and investigated. The Supreme Court gave the Guidelines regarding prosecuting medical professionals as follows:
The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science, to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of Criminal Law under Section 304-A of the Indian Penal Code.
The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He must seek bail to escape arrest, which may or may not be granted to him.
Certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India.
The investigating officer should before proceeding against the doctor accused of rash or negligent act, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that specific branch.
A doctor accused of rashness or negligence may not be arrested in a routine manner simply because a charge has been leveled against him unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
Contributory negligence
Contributory negligence is the absence of reasonable care on the part of the patient or his attendant that combines with the negligent action of the doctor resulting in the damage completed off directly and without which damage should not have occurred e.g., Failure to follow the line of treatment. Burdon of proof lies with the doctor. Quantum of injury caused by doctor’s and patient’s negligence is decided by the court and compensation is awarded accordingly.
Limitations of contributory negligence:
1. Last clear chance doctrine: In this rule the person who is negligent may recover the damages if the doctor discovered the injury while there was still time to avoid the injury, but he failed to do so.
2. Avoidable consequences rule: Could have avoided using reasonable effort or expenditure after the commission of the tort. This concept recognizes as fact, that if a plaintiff is injured by a defendant, that the plaintiff must take reasonable steps to avoid aggravating the injuries caused by the defendant.
Composite Negligence:
When the negligence is of two or more persons which results in similar damages to the third person is called composite negligence.
Distinction between composite and contributory Negligence:
There is negligence by both the defendant and the plaintiff and plaintiff’s own negligence contributes to the harm which he has suffered. There is negligence of two or more persons towards the patient and the patient himself is not to be blamed.
While the contributory negligence is a defense available to the defendant to overcome or reduce his liability in relation to the plaintiff the composite negligence is not a defense.
Corporate negligence:
It is the legal doctrine that healthcare facilities are responsible for the well-being of their patients. If a healthcare facility fails to maintain a clean and safe environment, hire competent and professionally trained employees, it can be held liable for any harm to patients. Any healthcare facility could be sued under the doctrine of corporate negligence for the actions of its employees.
Concepts related to the negligence
Respondent Superior (Vicarious Liability): If one of the members does any negligence, then the principal doctor is held responsible for the act of that member, known as respondent superior. The employer is responsible not only for the wrongful deeds committed by him, but also the wrongful deeds of his employees. The doctor usually employs or supervises other members of staff who are less qualified. He distributes the work amongst and supervises them. When two doctors are working as partners both are liable for negligence for the other even if one has no role to play in the management of the patient. It is also known as captain of the ship doctrine or doctrine of deep pockets as employer will deep pockets means more money to pay compensation.
Borrowed servant doctrine: If any employee is borrowed by an employer from the principal employer, then the temporary new employer is vicariously liable for any negligence done by the employee.
Doctrine of Res Ipsa Loquitor (the facts or things speak for itself): Usually, the professional negligence of a doctor must be proved in the Court of law by the experts in the field and the patient must prove the negligence of the doctor. The rule will be applicable if the following conditions are satisfied: (i) That in the absence of negligence the injury would not have occurred (ii) Doctor had exclusive control over the injury producing instrument or treatment, Failure to give tetanus toxoid in cases of injury resulting tetanus
Doctrine of Common Knowledge: This doctrine assumes that the issue of negligence in a particular case is not related to the technical matters which are within the knowledge of medical profession. However, in doctrine of common knowledge the patient must prove the causative factors that had resulted in negligence, but he need not produce the evidence to establish the standard of care.
Defense against negligence
Emergency: During emergency, the doctor may have taken some drastic steps to save the life of a patient which may have caused serious injuries.
Section 92 (I.P.C.) Act done in good faith for benefit of a person without consent. If the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him.
Calculated risk doctrine: The doctor is not negligent if he has taken a calculated risk and the patient suffered injuries. Medical profession is highly risk prone area and treatments often involve risks. If a doctor has decided treatment according to the accepted guidelines after proper examination, the calculated risk doctrine will insulate him.
Law of Limitation: Aggrieved person must file a complaint within two years of negligence as per The Consumer Protection act.
Therapeutic/medical misadventure: A misadventure is an accident or unexpected damage to the patient when the doctor is attending the patient during the treatment is called therapeutic misadventure e.g., Hypersensitivity reaction caused by administration of streptomycin etc.
Novus Actus Interveniens (unrelated action intervening):
When a doctor is negligent resulting in deviation from logical sequence of events, the responsibility for subsequent disability and death in such a case may pass from the original incident to the later negligent action.
Volenti non fit injuria:
The theory of the plaintiff’ implied or express consent to undergo the injury is sometimes advance as the probable basic principle of Contributory Negligence. The defense of Contributory Negligence confesses and avoids a prima facie liability; it excludes the idea of deliberation and relies upon the plaintiff’s failure to exercise reasonable care.
Res judicata Means when thing or matter that has been finally decided on its merits and cannot be litigated again between the same parties.
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