What makes India a great nation and also a hub which attracts different medical start-ups and outside people with different diseases to get medical treatment here? If cheap treatment and much more skilled, experts are your answer then it is completely justified. Pursuing the profession of doctor has always been a dream of top priority in Indians. In India, doctors are regarded as God for their faithful and trustful duty toward saving one’s life and curing them so that one can enjoy life in the way he/she used to enjoy earlier. The profession of a doctor is considered to be the noblest profession in the world. If we see precisely this profession, it is more about helping people and their community rather than what you can get in return as a profit from them.
But no man is perfect in itself regardless of how many skills, and knowledge one has. Mistakes can still be committed by humans and doctors are no exception. Mistakes can be minor as well as major and they can lead to even death also. A mistake in the medical field is termed Medical Negligence. The concept of medical negligence came into existence as a remedy that can help victims get justice for the negligence of others. Medical Negligence in layman’s terms means the improper or unskilled treatment of a patient by a medical practitioner and this can include negligence in taking care of a nurse to executing surgery without due reasonableness. It refers to the breach of utmost duty which a doctor owes towards his patient to have a reasonable amount of care, skills, and knowledge which can lead to temporary as well as a permanent disability which can vary from mental to physical also.
In India, the test for medical negligence in India is the Bolam test which was developed in Bolam v. Friern Hospital Management Committee1. Judges in this case complied with the Rule of Law heard the arguments of both the parties and applied ‘Reasonableness and Prudence guiding factor’ to deal with this case. The standard to be applied for judging whether the person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skills in that profession.
ABOUT THE BOLAM CASE
Before this landmark case, the world hardly had a few cases related to medical negligence and medical malpractice. ‘Bolam’ was a psychiatrist patient not of surgery or orthopedic or gynecologist. He used to go to the hospital for treatment of recurrent depression. During the whole treatment, he was a voluntary patient and he was advised electroconvulsive therapy by the concerned doctors, the treatment was also known as a shock treatment to which he fully gave consent to go ahead. During that time there were specifically two kinds of electroconvulsive therapy- one which includes giving of anesthesia or muscle relaxant which was comprehensively termed modified electroconvulsive therapy and another was unmodified electroconvulsive therapy which lacks the giving of anesthesia or muscle relaxant to the patient.
During the treatment of Bolam, doctors went ahead with giving unmodified electroconvulsive therapy by which they didn’t offer him any kind of muscle relaxant or anesthesia. Doctors gave him ECT with adequate and reasonable cautiousness for several sessions and in the initial sessions doctors observed some improvement also with his depression but as doctors didn’t give him any kind of muscle relaxant so he went with violent muscle contractions and he developed acetabular fracture that is a hip fracture during his electroconvulsive therapy. Though he improved his depression by that time he was completely dissatisfied with the hospital and its doctors for getting a hip fracture due to the pain he suffered.
He thought that though the hospital treated his depression but unfortunately, they had given him a fracture by the reason of the hospital being negligent so he decided to take the matter to the court. Court heard arguments for both sides and found that till that time there was no case of medical malpractice or medical negligence in which the party who had suffered pain had asked for compensation. So, Judge McNair who was one of the presiding judges of this case called the experts to get their opinion and for a better understanding of the concept of medical negligence during the 1950s. Judge McNair along with the opinions of experts in the medical field came to know that during the 1950s, treating patients with and without anesthesia was an accepted procedure for treatment. The reason behind not giving any muscle relaxant or anesthesia was its side effects which many times patients probably can get. The judge said that the decision by which doctors didn’t give him anesthesia was backed up by their reason that patient might get any side effects so they went ahead with unmodified electroconvulsive therapy i.e. without anesthesia.
Judge McNair came ahead with the landmark decision regarding the medical negligence case and held that doctors at the primary hospital are not at all negligent, the reason being that doctors in that hospital were able to follow one of the standard practices which were prevalent at that time- ECT with anesthesia and without anesthesia. Since they went ahead with one of the prescribed standard practices so doctors are not negligent. So, the judge propounded that a doctor is not guilty of negligence if he has acted following a practice accepted as proper by a responsible body of medical men skilled in that particular art. Also, ‘if doctors reach the standard of responsible medical opinion, he is not negligent.’
IS BOLAM FOLLOWED IN INDIA?
Yes, the Bolam test is being followed in India too which was propounded in the landmark case of Jacob Mathew v. State of Punjab2 in the history of criminal negligence. Also, in Dr. Suresh Gupta v. Government of NCT of Delhi & Anr3, the Indian Judiciary accepted the concept of the Bolam test in India.
- Ambiguity in the credibility of opinion by other doctors or experts- During the investigation and hearing of the case of medical negligence, when opinions of other doctors as well as experts are taken into consideration, it lacks credibility. Because human psychology makes people of the same fraternity save other people of the same profession from getting convicted. Many times experts and other doctors try to save other doctors from convicting as guilty.
- Investigation officer’s partiality- An investigation officer who gets appointed for the investigation of such medical negligence is always supposed and expected to investigate without any impartiality as well as with an unbiased mindset. IO shouldn’t have any degree of biasedness towards anyone, only then the purpose of a credible investigation can be fulfilled and the result of that investigation can be relied upon for pronouncing the judgment.
- Non-availability of doctors for investigation- Many times, for a fear of getting arrested, doctors and experts intentionally become unavailable for the investigation regarding medical negligence and medical malpractice.
- Specific rules rather than opinion- The government of India along with the Medical Council of India should work on formulating specific and strict rules and regulations rather than taking the opinions of other doctors as well as experts in the case of medical negligence. They should work on minimizing the loopholes of investigation so that suffered party in the case of medical negligence on part of doctors and hospital gets compensation and hence the utmost purpose of justice can be served.
- Extended scope of Medical Negligence- The Supreme Court of India along with the National Commission held doctors to be not liable for negligence because of some other person who holds better knowledge or skills and would have prescribed a different treatment or treated in another way. But, as long as he has acted in good faith, following practice accepted as proper by a reasonable body of medical professionals, he will not be held guilty of medical negligence or medical malpractice.
In today’s world, the instances of exploitative medical practices, misuse of diagnostic procedures, and human organ trafficking keep on hovering in the medical field. There was a time when the profession of doctors was considered the noblest profession one could pursue ever but with the passage of time and increasing greediness of the human race it has now been plagued by unethical motives and has become profit earning profession. To prevent the whole profession from becoming so, government and various commissions should make stringent rules and regulations which could easily help the judiciary hold the culprit liable on whose part medical negligence is committed or who was not prudent, didn’t have reasonable skill and knowledge. Government should put a halt now on opinion-based investigation rather should start strict rules, evidence, and unbiased investigation. To deliver justice in cases of medical negligence, the Indian judiciary must adopt various new approaches so that at least the sufferings of a person in courts can be minimized as much as possible. The court must take heavy penal actions for those found guilty of medical negligence and also impose heavy fines on hospitals that have employed such negligent professionals.
-  1 WLR 582:  2 AII.E.R. 118 at 587.
- 2. AIR 2005 SC 3180.
- 3. Dr. Suresh Gupta v. Government of NCT of Delhi & Anr, Appeal Cr 778 of 2004.
This article is written by Vedwrat Arya, a 3rd-year law student pursuing a BA.LLB from Dr. BR Ambedkar National Law University, Sonipat.