What Constitutes Medical Negligence

Jasdev Singh Mehndiratta, Advocate
Office : H.No. 3180 Section 71, S.A.S. Nagar, Mohali - 160071, Landline: +91-172-2273302, +91-172-5263000

Date : 25/03/2019 - Location : H. No. 3421 Section 71, S.A.S. Nagar, Mohali - 160071 Cell: +91-9872223180

What Constitutes Medical Negligence

Word `negligence' in legal parlance means failure to exercise care expected of a person of ordinary prudence towards another person to whom he owes the duty to be careful while doing certain act and such failure results in injury to that other person. In other words, for actionable negligence, three conditions are required to be fulfilled viz,-

(i) legal duty to take due care/caution on the part of a person towards another person;

(ii) failure to take expected care and caution; and

(iii) damage caused to the person to whom the duty is owed due to such failure.

Medical negligence, is no different from any other actionable negligence. The only difference is that the standard of care and caution expected of a medical professional should be that of a medical professional of ordinary skill and knowledge. Comparison is not to be done with a person having extra-ordinary skill in the profession. This is known as Bolam test because such a view was taken in the case of Bolam v. Friern Hospital Management Committee (1957) 2 All.E.R. 118 (QBD). The view has been followed all through and still holds the field.

According to Halsbury's Laws of England, a professional must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care.

A person is not liable, in negligence because someone else possessing greater skill and knowledge would have prescribed different treatment or operated in a different way. Also he would not be guilty of negligence, if he has taken recourse to a method of treatment and diagnosis, which is considered to be appropriate one by a legitimate group or body of medical practitioners having sufficient knowledge and experience, in the relevant field, even though another body of practitioners may hold a different opinion. Halsbury's Laws of England, further records that a mere deviation, from normal practice, is not necessarily a pointer to the negligence and that following three facts need to be proved, to hold a person guilty of medical negligence:

(a) there is a usual and normal medical practice for a particular type of ailment;

(b) the defendant has not adopted that practice; and

(c) the course adopted by the defendant is such that no professional of ordinary skill would have gone in for that had he been acting with ordinary care.

Simply for the reason that the course of treatment adopted does not work or the things go wrong, due to error of judgment in choosing a particular course of action in preference to another, the doctor cannot be held guilty of negligence.

The test for medical negligence laid down in Bolam's case has been adopted by Indian Courts in various cases. In Jacob Mathew v. State of Punjab and another (2005) 6 SCC 1, it has been specifically held that the test holds good in its applicability to cases in India. In a recent case reported as Vinod Jain v. Santokba Durlabhji Memorial Hospital and another 2019 SCC ONLINE SC 263, applying the Bolam's test, the Hon'ble Supreme Court dismissed the allegation of culpable negligence, against a doctor who on cannula having stopped working, instead of re-cannulating the patient, administered the anti-biotic orally, on noticing that the patient was normal, afebrile, well hydrated and displayed normal vitals.

As in the case of any other negligence, medical negligence can also be civil, for which the remedy is by way of damages or both civil and culpable. The difference between the two types of negligence is that while in the case of civil negligence, it is simple lack of care and caution, in the course of treatment and/or diagnosis, in the case of criminal or culpable negligence mens rea has also to be there. Mens rea in a case of criminal negligence does not mean the intention to cause harm. It means gross recklessness that is capable of causing serious harmful consequences, which are intended to be prevented by the relevant provision of penal law and which a professional of ordinary and average skill would have anticipated. The degree of recklessness should be so grave that the possible consequences were not even thought of before starting the questioned course of treatment/ diagnosis.

The Hon'ble Supreme Court in Syed Akbar v. State of Karnataka (1980) 1 SCC 30 held that negligence required to be proved in a criminal case must be gross and not based on just an error of judgment. It was also observed in this very case that there is a marked difference in the standard of proof in cases of civil negligence and those of criminal negligence. In a case of civil negligence, the allegation can be proved by the doctrine of preponderance of probability, but the charge of criminal negligence has to be proved beyond reasonable doubt.

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