27 January, 2018

"No greater opportunity, no greater responsibility, no greater obligation fall to the lot of the human being than to become a medical doctor: In the care of' the suffering, he/she needs scientific knowledge, technical skill and human understanding. And those who use these with courage, with humility and with whom, will provide a unique service to their fellowmen and women and will build an enduring edifice of character within themselves. It is this nature of human service that gives medicine its unique status of being a noble profession.”
-Dr R.D. Lele, former director, Jaslok Hospital, Bombay
Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.

Medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in practice, which are being practiced by an ordinary and reasonably competent man practicing the same profession.

Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis, the following must be shown:
  1. Existence  of legal duty to treat patient even by implication;
  2. Breach of the legal duty, if any, as compared to expected performance of his peer group; and
  3. Presence of damage caused by the breach which results in injury which needs to be compensated
In Kusum Sharma & Ors. vs. Batra Hospital & Medical Research Centre and Ors. I (2010) CPJ 29 (SC) on scrutiny of the leading cases of medical negligence both in our country and other countries especially in United Kingdom, the Supreme Court laid down some basic principles to deal with the cases of medical negligence. The court held that in deciding whether the medical professional is guilty of medical negligence following principles must be kept in mind:
  1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
  2. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
  3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
  4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
  5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
  6. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
  7. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
  8. It is the bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension
  9. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
  10. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.