Medical Negligence

Law > Medical Jurisprudence > Law and Medicine > Medical Negligence

A tort is a residuary civil wrong. Duties in tort are fixed by the law and such duties are owed in rem or to the people at large generally.  Such wrongs can be remedied by filing for unliquidated damages. Negligence is a tort. A negligence is 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. In this article, we shall discuss medical negligence.

Medical Negligence basically is the misconduct by a medical practitioner or doctor by not providing enough care resulting in breach of their duties and harming the patients which are their consumers. Medical negligence occurs when a doctor, dentist, nurse, surgeon or any other medical professional performs their job in a way that deviates from this accepted medical standard of care. A medical professional is not liable in all cases where a patient has suffered an injury. He might have a valid defense that he has not breached the duty of care. 

Medical negligence has caused many deaths as well as adverse results to the patient’s health. Some examples of medical negligence are as follows: 

• improper administration of medicines.
• performing the wrong or inappropriate type of surgery.
• not giving proper medical advice.
• leaving any foreign object in the body of the patient such as a sponge or bandage, etc. after the surgery.

Mens Rea at Medical Negligence:

Negligence is a tort. The concept of mens rea is not applicable in torts. If doctor’s rash or negligent act endangers human life or personal safety of his patient, he can be tried for criminal liability. In Jacob Mathew case the Court held that in criminal law medical professionals are placed on a pedestal different from ordinary mortals. It was further held that to prosecute the medical professionals for negligence under criminal law, something more than mere negligence had to be proved. Medical professionals deal with patients and they are expected to make the best decisions in the circumstances of the case. Sometimes, the decision may not be correct, and that would not mean that the medical professional is guilty of criminal negligence. Such a medical professional may be liable to pay damages but unless negligence of a high order is shown the medical professionals should not be dragged into criminal proceedings.

In King v. Phillips, (1953) 1 QB 429 case, the Court observed that the question of negligence arises only when there is a direct harm to the plaintiff by the misconduct and the harm should be foreseeable. Damage is an important ingredient to bring negligence under tort.

In Calcutta Medical Research Institute vs Bimalesh Chatterjee December 09,1998 case, the Court held that the onus of proving proofs against negligence and deficiency in service was clearly on the complainant. 

In Sishir Rajan Saha v. The state of Tripura, AIR 2002 Guwahati 102 case, the Court held that if a doctor did not pay enough attention to the patients in government hospitals as a result of which the patient suffers, the doctor can be held liable to pay compensation to the patient.

In State of Haryana v. Smt Santra, 24 April, 2000 case, the Supreme Court held that it is the duty of every doctor to act with a reasonable degree of care. However, no human in this world is perfect and even specialists make mistakes, a doctor can be made liable only if he fails to act with such reasonable care that every doctor with ordinary skills would be able to do.

Types of Medical Negligence:

Misdiagnosis:

The first step in any medical treatment is diagnosis. When a medical professional fails to diagnose what condition a patient is suffering from, then it may result in misdiagnosis. if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.

In V. Kishan Rao Vs Nikhil Super Speciality Hospital, 8 March, 2010  case, where a lady who was to undergo the treatment for malaria fever was treated differently. An officer in the Malaria Department filed a suit against the hospital authorities for performing the treatment of his wife negligently, who was undergoing the treatment for typhoid fever instead of malaria fever. The husband got the compensation. In this case, the principle of res Ipsa loquitor was applied.

Delayed Diagnosis:

A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion.  A delay in diagnosis can lead to an undue injury to the patient if the illness or injury is allowed to progress rather than being treated. In these cases the doctor / hospital / clinic may even be held liable for any damages resulting from the delay in diagnosis and treatment.

Surgical Negligence:

Medical negligence during a surgical procedure can often result in further surgeries, infection and sepsis, internal organ damage, immune system failure and even death. surgery, unintentional lacerations of an internal organ, uncontrolled blood loss, perforation of an organ or a foreign object being left in the patient’s body.

Unnecessary Surgery:

Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks.  Sometimes surgery is chosen over more conventional treatments for their expediency and ease compared to other alternatives. Surgical negligence can also take place where an operation wasn’t necessary in the first place or the patient didn’t fully consent.

Errors in Anesthesia:

Anesthesia is a risky part of any major medical operation and requires a specialist (anesthetist) to administer and monitor its effect on the patient. Medical negligence can occur as a result of the improper application anesthesia or a failure to monitor how it is impacting the patient. The results can range from patients waking up during surgery to brain damage as a result of a lack of oxygen.

In Jagdish Ram v. State of H.P., AIR 2007 (NOC) 2498 (H.P.) case, the Court held that before performing any surgery the chart revealing information about the amount of anesthesia ad allergies of the patient should be mentioned so that an anesthetist can provide ample amount of medicines to the patient. The doctor in above case failed to do so as a result of the overdose of anesthesia the patient died and the doctor was held liable for the same.

Childbirth Trauma and Labour Malpractice:

There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labour, misdiagnosis of a new-born medical condition, etc. Birth injuries can include any harm the mother or baby suffers either during and after the pregnancy. These injuries can have life-changing ramifications for both mother and child.

In Jasbir Kaur v. State of Punjab, AIR 1995 P H 278 case, a newly born child was found missing from the bed in a hospital. The child was found bleeding and near the wash-basin of the bathroom. The hospital authorities argued that the child had been taken away by a cat which caused the damage to him. The court held that the hospital authorities were negligent and had not taken due care and precaution. The Court awarded the compensation.

Negligent Long-Term Treatment:

Most medical conditions are not cured overnight. Instead, it is likely that a patient will need long-term treatment or care. Where a medical professional fails to monitor the impact of the treatment properly or does not schedule the correct follow-up appointment, medical negligence can take place.

Prescription and Medication Errors:

These mistakes may take the form of the wrong medication or dosage being given to the patient, medications being prescribed together that should not be, or medications being given to patients despite knowing they are allergic to them. Taking the wrong medication, or an incorrect dose of medication, can have serious consequences including brain damage, allergic reaction, digestive problems, psychological illness and in some cases even death.

In Dr. Kunal Saha v. Dr. Sukumar Mukherjee, 21 October, 2011 case, which is famous as the Anuradha Saha Case. In this case, the wife was suffering from drug allergy and the doctors were negligent in prescribing appropriate medicines for the same which ultimately aggravated her condition and led to the death of the patient. The court held the doctor liable for medical negligence and awarded compensation.

In the case of C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam, 1 May, 2009 case, the respondent was injured while going on a bicycle. He sustained severe injuries and a hairline fracture of the neck. On considering the various options available the doctor chose to perform hemiarthroplasty instead of internal fixation procedure. The surgery was performed the next day. The respondent filed a case against the doctor for not adopting the internal fixation procedure for the injury. The Supreme Court held that the appellant’s decision in choosing hemiarthroplasty with respect to a patient of 42 years of age was not so palpably erroneous or unacceptable as to dub it as a case of professional negligence.

Negligent Medical Advice:

Patient trusts medical professional’s expertise for treatment, Still doctor must advise on any risks, side effects or alternatives available. This advice is integral to being able to make an informed decision.

In Gian chand v. Vinod kumar Sharma, AIR 2008 H.P. 97 case, the Court held that shifting of the patient from one ward to another in spite of requirement of instant treatment to be given to the patient resulting in damage to the patient’s heath then the doctor or administrator of the hospital shall be held liable under negligence.

Civil Liabilities of Doctor in Medical Negligence:

Civil liability usually includes the claim for damages suffered in the form of compensation. If there is any breach of duty of care while operating or while the patient is under the supervision of the hospital or the medical professional they are held to be vicariously liable for such wrong committed. At times the senior doctors are even held vicariously liable for the wrongs committed by the junior doctors. Monetary compensation can be imposed under the general law by pursuing a remedy before appropriate Civil Court or Consumer forums.

In Mr. M Ramesh Reddy v. State of Andhra Pradesh, 2003 (1) CLD 81 (AP SCDRC) case the Court held the hospital authorities negligent, inter alia, for not keeping the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom leading to her death. A compensation of Rs. 1 Lac was awarded against the hospital.

Criminal Liabilities of Doctor in Medical Negligence:

There are various degrees of negligence and a very high degree of Gross Negligence is required to be proved beyond reasonable doubt for certain acts to be made punishable under the provisions of Criminal Law. As per existing Laws, cases for medical negligence caused by

Doctors can be filed under following enactments at the option of the Patients:

• A complaint for deficiency of service can be filed before the Consumer Forum under the Consumer Protection Act, 1986.
• A Civil Suit for the Recovery of Damages in the appropriate Civil Court.
• A complaint under Section 304–A of the Indian Penal Code, 1860 in the appropriate
• Criminal Court.
• A complaint to the Medical Council of India or The State Medical Council for de registration of a Doctor on account of negligence.

In Dr. Suresh Gupta vs Govt. Of N.C.T. Of Delhi, Appeal (crl.)  778 of 2004 case, the Supreme Court of India held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was liable in civil law for paying the compensation. Only when the negligence was so gross and his act was as reckless as to endanger the life of the patient, criminal law for offence under section 304A of Indian Penal Code, 1860 will apply.

In Vinod Jain v. Santokba Durlabhji Memorial Hospital, 5 February, 2019 case, the Supreme Court has mentioned the factors to be considered while establishing the liability in medical negligence cases. The Supreme Court made the below-mentioned observations:

• A doctor cannot be said to be negligent if his acts are in accordance with the set guidelines, merely because a body is there which holds a contrary view.
• A doctor need not have special expertise in medicine and it is enough if he exercises ordinary skills that an ordinary man of that profession would be able to do.
• A doctor cannot give assurance for any recovery as it is not in his hands and he can only try his best. The only assurance he can give is that he holds requisite skills in the profession and while undertaking this he should perform his duties as a reasonable man of the profession and in accordance with the standard of care in the medical profession.  

Contributory Negligence:

A person is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable prudent man he might be hurt himself. In his reckonings he must take into account the possibility of others being careless. When plaintiff contributes to the incident his role should be duly regarded when liability is determined and quantum of damages is assessed. Contributory negligence is a good defence available to doctor in all claims of civil nature. Contributory negligence of a patient is any unreasonable conduct or absence of ordinary care on the part of the patient or his personal attendant which combined with the doctors’ negligence contributed to the injury complained of as a direct proximate cause and without which the injury would not have occurred

Contributory negligence include

• Failure to give the doctor accurate medical history
• Failure to cooperate with his doctor in carrying out all reasonable and proper instruction
• Refusal to take the suggested treatment
• Leaving the hospital against the doctors advise
• Failure to seek further medical assistance if symptoms persist

Doctrine of Res Ipsa Loquitur:

Res ipsa loquitur is a Latin maxim whose meaning is “the things tells its own story”. The doctrine of Res Ipsa Loquitur has three elements:

1. the injury that had occurred under the circumstances must be explicit and can only occur due to someone’s negligence and it cannot occur in the ordinary situations.
2. the injury caused by the defendant to the plaintiff must have been done with the use of some instrument which was exclusively under the control of the defendant.
3. the injury caused to the plaintiff must be under the scope of the defendant’s duty and it must not be due to the voluntary act or the contribution from the plaintiff’s side.

The first condition of doctrine is technical in nature and is difficult to prove plaintiff being the layman in respect to medical science cannot prove the medical negligence based on his/her common knowledge.

In Jaspal Singh v. Medical college case, the patient, blood group was A+ was give n B+ blood on two different fays, and he died soon thereafter.

Defences Available to Medical Practitioner:

• The Medical Practitioner has to prove that there is no existence of duty of care towards the patients.
• Medical Practitioner has to prove that he has conducted the treatment to his best effort with due care and the course of treatment which he chooses to perform is suitable in the situation of case and as per medical norms.
• Another defence which is available with the Medical Practitioner is to prove that the patient did not suffer any injury from the treatment performed by him.
• The doctor may claim that the injury was caused by the patient not following proper medical advice. (Contributory negligence).
• That the injury complained of was the result of an unavoidable risk connected to that particular line of treatment, which was fully explained to the patient and for which the patient’s informed consent was obtained.
• That the patient himself insisted on a particular line of treatment, despite having been told by the doctor about the risk and consequences attached to that line of treatment.

• Section 80 of the Indian Penal Code, 1860, says that anything which happens as a result of an accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution is not an offense.
• Section 81 of the Indian Penal Code, 1860, states that if anything is done merely by the reason that it is likely to cause harm but if the same is done without any intention to cause harm and in good faith in order to avoid other damages to a person or his property is not an offense.
• Section 88 of the Indian Penal Code, 1860, says that no one can be made an accused of any offense if he performs an act in good faith for the good of other people and does not intend to cause harm even if there is a risk involved and the patient has given the consent explicitly or implicitly.

Precautions to be Taken by Medical Practitioner:

1. He must always respect the right of self-determination of the patient
2. He must treat the patient with due care and skill expected by the patient from a person trained in the medical profession.
3. He must adhere to standard and accepted practices of the medical profession when giving any treatment to the patient.
4. He must never give guarantee to the patient that the patient will be cured by him
5. After making full disclosure, all doctors must obtain an informed consent in writing from the patient, or his parent or guardian or near relative if patient is minor.
6. He must carefully record all the symptoms of the patient, the treatment given and progress made by the patient time to time and must kept record of this treatment.
7. He must consult a specialist wherever the need for such consultation arises.
8. He must not leave the patient unattended especially in the case of emergency.

Case Laws:

Dr. Jacob Mathew v. State of Punjab case:

A patient named Jiwan Lal was admitted to a private ward in CMC Hospital, Ludhiana. The patient suddenly had difficulty in breathing. His elder son called the nurse and doctor after seeing his father’s condition. No doctor turned up for about 20-25 minutes. After that, Dr. Jacob Mathew and Dr. Allen Joseph came to the room for the patient. The patient was immediately connected with an oxygen cylinder to his mouth which was empty. The son went to the adjoining room and brought another gas cylinder. During this, the doctor confirmed that the patient is dead. The younger son, Ashok Kumar Sharma filed a First Information Report (FIR) under Section 304A (causing death by negligence) read with Section 34 (common intention of criminal activity) of the IPC.

The Court observed that all the averments made in the complaint, even if held to be proved, do not make out a case of criminal rashness or negligence on the part of accused-appellant. There was no challenge to qualifications or method of treatment by the doctors. It is a cause of non-availability of oxygen cylinder for which hospital may be held liable in civil law but the accused-appellant cannot be proceeded against under Section 304-A of IPC on the parameters of Bolam’s test. Hence, the prosecution of the accused-appellant under Section 304A/34 is quashed. The Supreme Court prescribed following guidelines:

• A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
• The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation.
• A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
• That is why in Jacob Mathew’s case the Court held that in case of criminal negligence against a medical professional it must be shown that the accused did something or failed to do something in the given facts and circumstances of the case which no medical professional in his ordinary senses and prudence would have done or failed to do.

In Poonam Verma v. Ashwin Patel 1996 (4) SCC case, Pramod Verma, husband of the appellant, Mrs. Poonam Verma fell ill and complained of fever and so, Ashwin Patel, who was an authorized Homeopathic kept him under mediation and gave him some allopathic medicines for viral fever for two days. But even after these medications the condition of Ashwin Patel didn’t improve so Ashwin Patel shifted the medications from viral fever to Typhoid Fever because according to Ashwin Patel these two diseases were prevalent in the locality. But even then the condition of Pramod Verma deteriorated and so Ashwin Patel asked the appellant to shift Pramod Verma to Sanjeevani Maternity and General Nursing Home under Dr. Rajeev Warty. Then Pramod Verma was shifted to Hinduja Hospital in an unconscious state where, after four and a half-hour of admission, he died. The Appellant therefore filed a petition before the National Consumer Disputes Redressal Commission, New Delhi. The issue was whether there was a breach of duty of care by Ashwin Patel in the treatment of Pramod Verma and whether this will amount to actionable negligence. The honourable Court found Ashwin Patel guilty for negligence and was made to pay compensation.

In Roe v. Minister of Health (1954 2 Q. B. 66), the case revolved around how anesthetic drugs are to be stored by a medical professional. The facts leading to the case occurred in 1947, when an anesthetist kept such drugs in a manner that was considered to be safe at that time. Seven years later, that in 1954, it was found that undetectable crack could develop in the ampules if stored in that manner, and therefore it was dangerous practice. Acquitting the anesthetist the Court commented that in 1947, the drug was kept in a manner considered safe at that time which was found to be unsafe later. Subsequent knowledge cannot be used to hold doctor negligent and commented “An incident of 1947 cannot be seen with spectacles of 1954”.

Conclusion:

Medical Negligence is the misconduct by a medical practitioner or doctor by not providing enough care resulting in breach of their duties and harming the patients which are their consumers. Any deviation from the accepted medical standard of care is considered to be medical negligence, and if it causes undue injury to a patient the doctor, staff and/or hospital may be held liable. Medical negligence becomes medical malpractice when the doctor’s negligent treatment causes injury to the patient—makes the patient’s condition worse, causes unreasonable and unexpected complications, or necessitates additional medical treatment. Medical negligence can occur in many different ways, the general theme is that a medical professional deviates from the level of care that is required by his or her duty to patients.

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