What is Negligence

Negligence is conduct that falls below the standard prescribed by law for the protection of others against unreasonable risk or harm. Negligence under Torts has the following three constituents-

• A legal duty owed to someone to exercise reasonable care
• Breach of such duty
• Damage arising from such breach

For determining whether a person was negligent or not, the test of the reasonable man is applied, i.e. whether a reasonable man in similar circumstances as the defendant would have foreseen the risk and avoided it by taking precaution. Now you must be wondering who is this reasonable man? To answer your question, he is neither infallible nor perfect. He is an average man of a community. To quote Lord Macmillan, “Some persons are by nature timorous and imagine every path beset with lions, while others are of robust temperament who nonchalantly disregard the most obvious dangers, the reasonable man is neither very bold nor very cowardly.” 

Professional Negligence

Medical and legal practitioners, CAs, consultants, etc belong to the professional world and are persons of skill. Hence, the maxim spondes peritiamartis  (meaning-if your position implies skill, use it) applies to them.

Professions and professional people are different from others on four grounds-

• Nature of work majorly involves skill and application of mind on a larger extent than the physical input.
• They are governed by professional associations that oversee the working and conduct of its members, make sure the standards are met, handle the admissions, etc. besides multiple other things.
• Professionals are committed to moral principles that go way beyond the general principles of morality etc. Ever heard of the Hippocratic Oath?

Hence, it is an established principle that they are expected to show the care and skill of the member of his class and not that of an ordinary person.

Medical Negligence

The medical field is a noble profession and imposes a higher degree of responsibility on the persons professing it, hence it calls for a treatment with a difference.

McNair J. in Bolam’s case (Bolam v Friern Hospital Management Committee, 1957) laid down the tests to examine the degree of care to be exercised by medico-professionals and it is in practice in India. He listed them as follows:-

• The Standard laid down was that of a “reasonable average” as Law does not require a professional to be extraordinary.
• A professional is supposed to possess a corpus of knowledge and shall not bring any less expertise or skill than the ordinary members of his profession.
• He shall be aware of all the developments, advances, and discoveries in his field.
• He shall be aware of deficiencies in his knowledge and skills, the hazards and risks in any professional task that he undertakes. 

Three criteria were given, if fulfilled the test would show a positive result-

• There existed a usual practice.
• It must be proved that the defender did not adopt that practice.
• And the most important criteria- the course that the defender adopted, no professional man of ordinary skill would have taken it in that very circumstance, acting in ordinary care.

Concluding it, a medical practitioner would be negligent if he did not act by the standards of a reasonably competent medical practitioner at that time.

Bolitho Test

As contrary to Bolam Test, Bolitho test lays down that the Court should not accept a defense argument as being “reasonable”, “respectable” or “responsible” without first assessing whether such opinion is susceptible to logical analysis. Meaning, that if a professional opinion fails to withstand logical analysis, the Court will not consider it as responsible or reasonable. This in turn increases the burden on the medical practitioner to prove his case and makes more room for compensation. While it may sound appeasing from the plaintiff’s POV, it is worth mentioning that Indian Courts have only mentioned the Bolitho test twice over the years. I guess they have had their doubts to inculcate it in our justice system. On the other hand, England can be seen adopting it in its full form.

Remedies Available

1. MEDICAL COUNCIL OF INDIA

It is the governing body of the medical profession that monitors the medical practice in India and formulates rules, set standards, etc amongst various things.

Plaintiff can file a complaint of medical negligence with the concerned State Medical Council, which will then look into the allegations and the accused response as per the prescribed procedure and will decide on the merits of the case. If the accused is found guilty, action will be taken against him, most probably resulting in cancellation of his registration or suspension. The only demerit is that Indian Medical Council Act, 1956 does not provide any provision for compensation to the aggrieved.

2. CIVIL LIABILITY UNDER CONSUMER FORUM

This was not an option before but after the case Indian Medical Association v. V.P. Santha (1996) SC, it has emerged as a remedy to the absence of compensation to the aggrieved by the Medical Council of India. This case is discussed in the latter part of the article.

3. CRIMINAL LIABILITY

For negligence to amount to an offence, the element of mens rea– guilty mind, needs to be there. The basic difference between civil and criminal negligence is that the negligence of the grossest kind or very high degree only would amount to criminal negligence. The plaintiff, in this case, would have to file a complaint with police authorities as per CrPC.

Some Judgments Related to Medical Negligence

Dr. P. Narsimha Rao v. G. Jayaprakasu (1990)- In this case, while performing a surgery, the anesthetic was negligent that led to the blocking of respiration of the patient. This was seen by the surgeon too who without obtaining the condition of the patient from the anesthetic operated on the patient that led to the brain damage of the patient. Both anesthetic and the surgeon were held liable by the Andhra Pradesh High Court for medical negligence.  

Poonam Verma v. Ashwin Patel (1996)- The defendant was a homeopathic physician and was found violating his statutory duties by prescribing allopathic medication to the plaintiff. Hence, the Supreme Court held him guilty of negligence and to pay damages.

Malay Kumar Ganguly v. Sukumar Mukherjee (2010)- In this case, the Supreme Court held that the duty of care imparted on medical professionals includes the duty to disclose possible side effects of medicine or alternative treatments and if they fail to do so it would amount as medical malpractice. But an act that may constitute rashness or negligence would not amount to an offence u/s 304A, IPC 1860. 

Consumer Protection Act, 1986 and Medical Negligence

As mentioned earlier, the plaintiff aggrieved from medical negligence had no provision for compensation. Then came Consumer Protection Act in 1986 but still the situation was same as the stand was not clear, whether medical services came under Consumer Protection Act or not. Besides SLPs against the decision of the subordinate Court, a writ petition was filed in the Supreme Court under Article-32.  To decide upon scope and jurisdiction of The Consumer Protection Act, 1986.

Indian Medical Association v. V.P. Santha (1996)

Following points were laid down by the Supreme Court in this landmark judgment: –

• Medical services are to be treated as a part of “services” u/s 2(1)(o) of the Consumer Protection Act irrespective of the fact that medical practitioners are subject to the disciplinary control of the Medical Council of India under the Medical Council Act,1956.
• Medical service is not a contract of personal service as there is no master-servant relationship.
• Extent /scope of services rendered by medical practitioners and the hospital, clinics, etc under The Consumer Protection Act.

• Employment of a medical officer to render medical services to the employer- contract of service- not a part of “services” under The Consumer Protection Act.
• Services rendered by medical practitioners “free of charge” to everybody- not a part of “services” under The Consumer Protection Act.
• Services rendered by non-governmental hospital/nursing home or governmental hospital/clinic “free of charge”- not a part of “services” under The Consumer Protection Act.
• Services rendered by non-governmental hospital/nursing home or governmental hospital/clinic/health centre/dispensary availed at charges- part of “services” under The Consumer Protection Act.
• Services rendered by non-governmental hospital/nursing home or governmental hospital/clinic/health centre/dispensary, at charge for Those who are in a position to pay and free for others- part of “services” under The Consumer Protection Act.
• If the person is availing of medical services and has taken insurance policy, charges being borne by an insurance company- part of “services” under The Consumer Protection Act.
• Where employer bears charges of medical services of an employee and his dependant family members-part of “services” under The Consumer Protection Act.

CONCLUSION

Doctors all over the world are given the status of that equal to God, because of the nature of their work of treating the sick and giving life. In current times of ongoing pandemic, their duties have become even more severe and despite that fact, they relentlessly, without thinking about themselves, continue to serve. But amidst all this, we forget that at the end of the day they are humans only, capable of making errors. Given the nature of their work, it is prudent to exert a legal duty of reasonable care as that of a reasonably competent practitioner at that time and not impose any extraordinary standards to be maintained by them.

No doubt the Supreme Court in V.P. Shantha’s case put a huge debate to rest and also clarified the law related to medical negligence under The Consumer Protection Act. But the system of liability which is established under CPA by V.P. Shantha case, in my opinion, is not apt in its entirety as it excludes patients who seek medical treatment from hospitals under free of charge scheme. It is a question of common conscience and equity as persons who are availing such free services are not economically sound to support medical expenses. And to exclude them from getting compensated for medical negligence under CPA  seems morally and logically wrong. Hence, it needs reconsideration. 

In the end, I will leave you with a question- Do you feel that this exclusion (the patients seeking medical services free of charge from getting compensation under The Consumer Protection Act) somewhat leave loose ends to the very objective of why compensation for medical negligence was acknowledged in the first place? While pondering over it, keep in mind the economic structure of our country and the quality of medical services provided by these “free of cost” institutions.

This article is written by Munmun Kaur, a law student at Law Centre-I, Faculty of Law, Delhi University.

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