WHAT IS MEDICAL NEGLIGENCE?
Before discussing medical negligence, it would be in order to understand the concept of negligence as such. Negligence may be defined as the “breach of a duty caused by the omission to do someth something ing which which a reason reasonabl ablee man, man, guided guided by those those consid considera eratio tions ns which which ordinar ordinarily ily regulate regulate the conduct of human human affairs affairs would do, or doing something something which a prudent prudent and reasonable man would not do”. A shorter definition is that “negligence as a tort is the breach of legal duty to take care which results in damage, undesired by the defendant to the plaintiff”. The definition involves involves three constituents constituents of negligence negligence !"# A legal duty to e$ercise the due care on the part of the party complained of towards the party par ty complaining the former%s conduct within the scope of the duty& !'# Breach of the said duty& !(# conse)uential damage. As regards medical negligence , the legal position has been described in several leading *udgments. +ome of these are given below. 1. In the leading case Bolam v. Friern Hospital Management Committee [(1957) 2 All ER, wherein *udge c Nair -. has stated as follows
////.. where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a 0lapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man e$ercising and professing to have that special skill. skill. A man need not possess the highest highest e$pert skill at the risk of being found negligent. negligent. 1t is well2established law that it is sufficient if he e$ercise the ordinary skill of an ordinary competent man e$ercising that particular art. 0ounsel for the plaintiff put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards& and if a medical man conforms with one of those proper standards then he is not negligent. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. 3utting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig2headedly carry on with some old techni)ue if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. 2 The S!"#eme C$!#t in a!man v. "rim#a$ A%R 19&9 'C 12 held The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. +uch a person when consulted consulted by a patient owes him certain duties vi4., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration administration of that treatment. treatment. A breach of any of those duties gives a
right of action for negligence to the patient. The practitioner must bring to his task a reasonable reasonable degree of skill and knowledge knowledge and must e$ercise a reasonable reasonable degree of care. Neither the very highest nor very low degree of care and competence *udged in the light of the particular circumstances of each case is what the law re)uires.” %&In A*+,trao Hari#+a, -+o/a v. 'tate o0 Ma+aras+tra [A%R 199& 'C 277 , the +upreme 0ourt said-said-The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable advisable for treating treating a patient. patient. 0ourts would indeed be slow in attributing attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. edical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the 0ourt finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would would be difficult to hold the doctor doctor to be guilty of negligence. '&In S"#ing Mead$(s H$s"ital ) An#. *s. Ha#+$l Ahl!(alia ) An#., 1--/ ' SCC %- at '0, the Ape$ 0ourt has specifically laid down the following principles for holding doctors negligent “5ross medical mistae will always result in a finding of negligence. 6se of wrong drug or wrong gas during the course of anaesthetic will fre)uently lead to the impositio imposition n of liability liability and in some situations situations even the principle principle of res ipsa loquitur can be applied. 7ven delegation of responsibility to another may amou amount nt to negl neglig igen ence ce in cert certai ain n circ circum umst stanc ances es.. A cons consul ulta tant nt coul could d be negl neglig igen entt where where he dele delega gate tess the the resp respon onsi sibi bili lity ty to his his *uni *unior or with with the the knowledge that the *unior was incapable of performing of his duties properly. 8e are indicating these principles since in the case in hand certain arguments had been advanced in this regard, which will be dealt with while answering the )uestions posed by us.” & In 3$$n 3$$nam am *e#m *e#ma a *s Ash( Ash(in in 3atel 3atel and and 4t 4the he#s #s,, de deci cide ded d $n 15.5 15.5. .11--6 -6,, the +upreme 0ourt observed as follows
“"(. Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. !+ee Blyth v. Birmingham 8aterworks 0o., !"9:;# "" 7$ch <9" Bridges v. =irectors etc. of N. >. ?y. !"9<(2<@# > '"( 5overnor25eneral in 0ouncil v. t. +aliman, !"@# 1>? '< 3at 'C< !A1? "@ 3atna (99#& 8infield and -olowic4 on Tort#. "@. The definition involves the following constituents 2 !"# a legal duty to e$ercise due care& !'# breach of the duty& and !(# conse)uently damages. ":. ":. The The brea breach ch of duty duty may may be occa occasi sion oned ed eith either er by not not doin doing g somet somethi hing ng whic which h a reasonable man, under a given set of circumstances would do, or, by doing some act which a reasonable prudent man would not do. ";. +o far as persons engaged in edical 3rofession are concerned, it may be stated that every person who enters into the profession, undertakes to bring to the e$ercise of it, a reasonable degree of care and skill. 1t is true that a =octor or a +urgeon does not undertake
that he will positively cure a patient nor does he undertake to use the highest possible degree or skill, as there may be person more learned and skilled than himself, but he definitely undertakes to use a fair, reasonable and competent degree of skill. This implied undertaking constitutes the real test, which will also be clear from a study and analysis of the *udgment in Bolam v. Driern ospital anagement 0ommittee !":<# ' All 7? ""9, in which, cNair, -., while addressing the *ury summed up the law as under The The test test is the the stan standa dard rd of the the ordi ordina nary ry skil skille led d man e$er e$erci cisi sing ng and and professing to have that special skill. A man need not possess the highest e$pert skill& it is well established law that it is sufficient if he e$ercises the ordinary skill of an ordinary competent man e$ercising that particular art. 1n the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent. "<. "<. This This deci decisi sion on has has since since been approv approved ed by the the ous ousee of >ord >ordss in Whiteh$!se 7. 8$#d 8$#dan an,, 1- 1-1/ 1/ 1 All All E9 260 260 H HL/ L/& ayn aynard ard v. 8e 8est st idl idlan ands ds ?egi ?egion onal al eal ealth th Authority, !"9:# " All 7? ;(: !>#& +idaway v. 5ethlem ?oyal ospital, !"9:# " All 7? ;@( !>#& 0hin Eeow v. 5ovt. of alaysia, !";<# " 8>? 9"( !30#. 6 In 3a*o# Mat+e/ 4s. 'tate o0 ,n6a# (25)& 'CC 1, while dealing dealing with the tests to be kept in mind by the courts in dealing with cases of medical negligence, the on%ble +upreme 0ourt observed as follows " “/So “/So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical medical practitioner cannot be held negligent negligent merely because he chose to follow one procedure procedure and not another another and the result was a failure.” 0&In D#.:!nal Saha 7. D#. S!!ma# M!he#+ee and 4#s., decided $n 1st 8!ne, 2556 2556,, the National 0onsumer 0ommission summarised the medical negligence law as follows ?eal test for determining deficiency in service 8ell laid down tests for determining deficiency in service are 2 whether there is failure to act in accordance with standard of a reasonable competent medical practitionerF !i#. 8hether there was e$ercise of reasonable degree of careF !ii#. The degree of standard or reasonable care varies in each case depending upon e$pertise of medical man and the circumstances of each case. Gn this aspect, it would be worthwhile to refer to the enunciation from alsbury%s >aws of 7ngland. “8ith regard to degree of skill and care re)uired by the doctors, it has been stated as under in !pr.(;, p.(;, Hol.(C, alsbury%s >aws of 7ngland, @th 7dn.# “The practitioner must bring to his task a reasonable degree of skill and knowledge, and must e$ercise a reasonable degree of care. Dailure to use due skill in diagnosis with the result that wrong treatment is given is negligence. Neither the very highest nor a very low degree of care and competence, *udged in the light of the particular circumstances of each case, is what the law re)uires, and a person is not liable in negligence because someone else of greater skill and know knowle ledg dgee woul would d have have presc prescri ribe bed d diff differe erent nt trea treatm tmen entt or opera operate ted d in a different way& nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men
skilled in that particular art, even though a body of adverse opinion also e$ists among medical men& nor is a practitioner necessarily negligent if he has acted in accordance with one responsible responsible body of medical opinion in preference to another in relation to the diagnosis and treatment of a certain condition, provided that the practice of that body of medical opinion is reasonable.” The Ape$ 0ourt aptly stated the said principles further in =r.>a$man Balakrishna -oshi Hs. =r.Trimbak Bapu 5odbole, A1? "; +0 "'9, which reads as under “The practitioner must bring to his task a reasonable degree of skill and knowledge and must e$ercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence *udged in the light of the the part partic icul ular ar circ circum umst stan ances ces of each each case case is what what the the law law re)ui re)uires res !cf. !cf. alsbury%s alsbury%s >aws of 7ngland, (rd ed. Hol. '; p."<#. The doctor no doubt has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.” +imilarly in 3oonam Herma Hs. Ashwin 3atel !";# @ +00 ((', dealing with medical negligence, the 0ourt observed that 10. +o far as persons engaged in the medical profession are concerned, it may be stated that every person who enters into the profession, undertakes to bring to the e$ercise of it, a reasonable degree of care and skill. 1t is true that a doctor or a surgeon does not undertake that he will positively cure a patient nor does he undertake to use the highest possible degree of skill, as there may be persons more learned and skilled than himself, himself, but he definitely definitely undertakes to use a fair, reasonable and competent degree of skill. This implied undertaking constitutes the real test, which will also be clear from a study and analysis of the *udgment in Bolam v. Friern Hospital Management ommittee: ommittee: in which, cNair, -., while addressing the *ury summed up the law as under
“The “The test test is the the stan standa dard rd of the the ordi ordina nary ry skil skille led d man man e$er e$erci cisi sing ng and and professing to have that special skill. A man need not possess the highest e$pert skill at the risk of being found negligent. 1t is well established law that that it is suff suffic icien ientt if he e$erc e$ercis ises es the the ordi ordina nary ry skil skilll of an ordi ordina nary ry competent man e$ercising that particular art. 1 do not think that 1 )uarrel much with any of the submissions submissions in law which have been put before you by counsel. 0ounsel for the plaintiff put it in this way, that in the case of a medica medicall man, man, neglig negligenc encee means means failur failuree to act in accorda accordance nce with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards& and if a medical man conforms with one of those proper standards then he is not negligent.” 1. This decision decision has since been approved by the ouse of >ords in !hitehouse v. "ordan& "ordan& Maynard v. !est Midlands #egional Health $uthority& $uthority & Sidawa Sidawayy v. Bethlem #oyal Hospital & hin %eow v. &o't. of Malaysia. Malaysia . 1-. The test pointed out by cNair, -. covers the liability of a doctor in respect of his diagnosis, his liability to warn the patients of the risk inherent in the treatment and his liability in respect of the treatment.”
1f there are alternative procedures of treatment and if a =octor adopts one of them and conducts the same with due care and caution then no negligence can be attributed towards him.
As per the settled law discussed above, deficiency in medical negligence is to be *udged on the following principles !i#.
1t is is to be remembere remembered d that that a =octor =octor or a +urgeon +urgeon does not undertake undertake that that he will positively cure a patient nor does he undertake to use the highest possible degre degreee of skil skill, l, as ther theree may may be pers persons ons more more learn learned ed and and skil skille led d than than himself, but he definitely undertakes to use a fair, reasonable and competent degree of skill. !ii#. 1t is to to be stated stated that that if there are are several several modes modes of treatm treatment ent and if a =octor =octor adopts one of them and conducts conducts the same with due care and caution then no negligence can be attributed towards him& !iii#. !iii#. +econd +econdly, ly, in the case of medic medical al man, neglige negligence nce means, means, failure failure to act in accordance with the standards of reasonably competent medical men at the time. !iv#. A medical practitioner is e$pected to e$ercise a reasonable degree of care and e$ercise skill and knowledge which he possess& !v#. No doubt, doubt, failu failure re to use due skill skill in in diagnos diagnosis is with with the result result that that wrong wrong treatment is given is negligence& !vi#. edical edical opinion opinion may differ differ with regard regard to diagnosis diagnosis or treatment treatment,, but in a com complic plicat ated ed case case if they they occu occurr and and 0our 0ourtt will will be slow slow in attr attrib ibut utin ing g negligence on the part of the =octor if he has performed his duties to the best of his ability and with due care and caution.
