MEDICAL NEGLIGENCE

Medical negligence is a common issue in the healthcare industry. Despite doctors' best efforts, patients may file claims against them
for subpar care. These claims can be brought in various courts, including consumer, criminal, and civil courts. Medical negligence is
often equated with medical malpractice. The legal basis for negligence claims lies in contract law, tort law, and now the CPA, 1986.
Professional negligence AKA malpractice, occurs when a healthcare provider fails to exercise the standard of care expected of a
reasonable professional in similar circumstances, leading to harm or injury to the patient. This can be due to a lack of skill,
carelessness, or intentional misconduct. However, it's important to note that negligence alone is not enough; the patient must also
prove that the negligence caused the harm. In medical malpractice cases, there's no fixed standard for care, but a practitioner is
expected to meet the average skill level of their peers.

V.N. Whitamore v. R.N. Rao In this case the Lahore High Court ruled that doctors are entitled to payment if they use standard care,
even if treatment fails. Mistakes aren't negligence if proper care is used. Specialists have higher standards than general practitioners.
Hatcher v. Black and Roe v. Ministry of Health These cases emphasize that doctors shouldn't be held liable for inherent risks or
errors in judgement.
Moore v. Lewisham Moore notes that courts shouldn't impose liability for differences in medical opinions.

The burden of proof usually lies with the plaintiff. However, in certain cases where negligence is obvious (res ipsa loquitur) the doctor
must prove their innocence. This applies when the injury is clear evidence of negligence, the plaintiff didn't make their injury worse,
and the doctor was solely responsible for the situation. Res ipsa loquitur puts a big burden on the doctor, so it's important for doctors
to be careful and get expert help if they're unsure.

NEGLIGENCE (TORTIOUS LIABILITY)

Negligence in the context of torts, refers to a failure to exercise reasonable care, resulting in harm to another person or property. Basic
components:

● Duty of Care: The defendant must owe a legal duty to the plaintiff.
● Breach: The defendant must have breached that duty.
● Damage: The breach must result in damage to the plaintiff.

In medical negligence cases, professionals are judged by whether they followed the accepted standards of care at the time, not by the
reasonable man standard or whether a better method was available.

Jacob Mathew case highlighted that medical professionals are assessed based on adherence to these standard practices rather than the
outcomes of their actions.

Negligence is categorised into three degrees:

● Lata culpa: Gross neglect.

● Levis culpa: Ordinary neglect.
● Levissima culpa: Slight neglect.

Each degree affects the liability of the defendant, with gross neglect potentially leading to more severe consequences.

CIVIL NEGLIGENCE
Civil negligence or malpractice occurs when

● a patient, or their relatives of the patient who has died, files a lawsuit against a doctor seeking compensation for injury or
death caused by the doctor's negligence.
● a doctor sues for unpaid fees, with the patient or their relatives claiming malpractice as a defence.

A doctor’s liability is not reduced if the negligence happened in a charitable hospital.

The patient must prove the doctor's lack of care and resulting damage within two years. Once a court decides, it can't be revisited.
Civil negligence involves failing to meet contractual obligations.
R. v. Batesman established that doctors must meet a fair standard of care, regardless of their knowledge or diligence.

ADJUDICATIONS UNDER LAW OF TORTS

Bolam v. Friern Hospital Management Committee: The basic principle of medical negligence, known as the Bolam rule, was
established in this case. According to this rule, negligence is judged by the standard of care expected from a reasonably skilled
professional in the field, rather than the average person. A doctor is not required to have the highest level of skill but must meet the
standard of an ordinary competent practitioner in their field.
Over time, the Bolam rule has been modified in various jurisdictions. For example:
Bolitho v. City and Hackney Health Authority: the court ruled that a doctor cannot avoid liability solely by presenting expert
opinions that support their actions. The court must ensure that the expert opinions are well-founded and demonstrate a logical basis,
especially when weighing risks against benefits.
Sidaway v. Board of Governors of Bethlem Royal Hospital: determined that the degree of risk disclosure to a patient should be
guided by clinical judgement. The court should consider whether a reasonable medical professional would disclose certain risks and if
such disclosure is necessary for the patient to make an informed decision. This decision is often based on expert medical evidence, but
in some cases, the lack of disclosure might be so evidently detrimental to patient choice that it breaches the duty of care, even if no
expert witnesses condemn it.
A.S. Mittal & Anr. v. State of U.P. & Ors., the Supreme Court addressed negligence in a free eye camp where patients suffered
irreversible eye damage due to postoperative infections caused by contaminated saline. The Court ruled that the State Government
should compensate the victims, citing clear negligence.
In medical negligence, a registered doctor is presumed to have reasonable skill. Proving negligence requires showing the doctor failed
to take basic precautions or perform necessary tests. The benefit of doubt generally favours the doctor, especially for unpredictable
procedures and drug side effects. Standards expected of doctors may vary based on their practice setting.

The liability of a doctor can be civil, criminal, or both.

CRIMINAL LAW
In criminal law, the concept of mens rea (guilty mind or intention) is crucial. This raises the question of whether medical negligence,
whether slight, ordinary, or gross, can lead to criminal liability, given that proving mens rea is challenging in these cases. In criminal
cases, it is difficult to establish that a doctor had a guilty mind or acted with evil intent.

Dr. Suresh Gupta (2004): The Supreme Court in this case clarified that doctors are liable for compensation in civil cases of
negligence. However, criminal liability under Section 304A of the Indian Penal Code (IPC) arises only when negligence is gross or
reckless, endangering a patient’s life. Criminal liability is not applicable for mere errors in judgement or accidents. Section 304A
states that causing death by negligent acts not amounting to culpable homicide can result in imprisonment or a fine.

● Section 80: Acts done by accident or misfortune, without criminal intention, are not considered offences.
● Section 88: Acts done in good faith for a person’s benefit, with consent, are not offences even if they cause harm.

In Jacob Mathew the court explained criminal negligence is when someone acts recklessly, without thinking about the possible
consequences, rather than intentionally harming someone. it must be shown that the actions or omissions were so rash that no
reasonable medical professional would have acted in that way, and the resulting injury was highly likely due to the hazard taken. It
was said that ‘simple’ negligence may result only in civil liability, but ‘gross’ negligence or recklessness may result in criminal
liability.

Martin D’Souza’s Case involved a patient who suffered hearing loss after a kidney transplant. The patient claimed excessive
Amikacin dosage caused the hearing loss and sought compensation. The Supreme Court reviewed past medical negligence cases and
concluded that neither the doctor nor the hospital was negligent. The Court emphasised that medical and legal practices are imprecise
and outcomes can [Link] Court also noted difficulties in applying the principles from Jacob Mathew’s case, particularly:

● The subjective nature of what constitutes reasonable care, with varying opinions among experts about the levels of care
required.
● The challenge in distinguishing between "simple" and "gross" negligence, as the dividing line is often unclear.

The Court acknowledged that judges, lacking medical expertise, find it difficult to precisely define and assess medical negligence.
The Court instructed police not to arrest or harass doctors unless there is clear evidence of negligence, and directed consumer and
criminal courts to refer complaints to a committee of doctors before issuing notices.
CRIMINAL NEGLIGENCE
Criminal negligence in medical practice involves serious injury or death resulting from a doctor’s gross negligence or misconduct.
Under Section 304-A of the Indian Penal Code (I.P.C.), a doctor can be charged with causing death by rash and negligent acts if the
death results from severe carelessness or improper conduct in their duties. For serious injuries, charges may be brought under
Sections 336, 337, or 338 of the I.P.C.

Criminal negligence includes:

● Drunkenness or Impaired Efficiency: A doctor’s actions due to intoxication or drug use.

● Failure to Report: Not reporting suspected criminal acts or violence, violating Section 202 of the I.P.C..
● Fraudulent Certificates: Issuing false birth or death certificates or concealing criminal acts.
● Gross Medical Errors:
○ Failure to conduct necessary tests (e.g., sensitivity tests).
○ Administering fatal doses or wrong medications.
○ Performing operations on the wrong patient or body part.
○ Leaving surgical instruments or sponges inside the body.
○ Mismanagement in procedures, such as using infected blood or inappropriate dressings.
○ Criminal abortions or operations outside legal bounds.
○ Mismanagement of deliveries under intoxication.

Such conduct disregards patient safety and is punishable by imprisonment, fines, or both.
R. V. Batesman: the death of a woman in labour was due to gross negligence on the part of the doctor. The case was that of difficult
labour. At the end a dead child was born and the patient was in gravely poor condition. The doctor did not decide to send the patient
until the 5th day. She died two days later. At post-mortem, it was found that a urinary bladder ruptured and a large intestine crushed
against the spine. Dr. Batesman was prosecuted for manslaughter (culpable homicide) and was found guilty.

Jaggan Khan v. State of M.P., a registered Homoeopathic practitioner prescribed the administration of a dose of stramonium to be
taken with a leaf of ‘Datura’. In consequence the patient died. Datura leaf is a poisonous substance and does not fall within the
purview of Homoeopathic medicine. Hence its prescription without studying its effect was held as rash and negligent act punishable
under Section 304-A, I.P.C.

Jacob Mathews v. State of Punjab, the Supreme Court established guidelines to protect doctors from baseless allegations of medical
negligence:

● Prima Facie Evidence: Private complaints against doctors should only be entertained if the complainant provides credible
evidence from another competent doctor supporting the claim of negligence or rashness.
● Independent Medical Opinion: Before taking action against a doctor, the investigating officer must obtain an independent
medical opinion, preferably from a government doctor qualified in the relevant field, using the Bolam test to ensure
impartiality.
● Arrest Protocol: Doctors should not be arrested automatically upon accusation. Arrest should be considered only if necessary
for the investigation, to collect evidence.

Court Concluded that

● A simple deviation from standard professional practice does not constitute negligence.
● Accidents alone are not evidence of negligence.
● A professional's error in judgment is not considered negligence per se.
● Unfavourable patient outcomes or failed surgeries do not automatically imply negligence or liability.

CONTRIBUTORY NEGLIGENCE
Contributory negligence refers to a patient's own actions or failures that contribute to their injury or harm, potentially impacting their
right to compensation. Patients are expected to adhere to medical instructions, and non-compliance can lead to loss of compensation
for any resulting damage. However, doctors must warn patients of foreseeable risks; without such warnings, a doctor cannot use
contributory negligence as a defence.
While contributory negligence is a valid defence in civil cases, it does not absolve a doctor of criminal liability in cases of death,
though it may mitigate the severity of charges. For example, patients discharged against medical advice who later experience
complications may be considered to have contributed to their own negligence. To safeguard their interests, doctors and institutions
often require patients to sign consent forms acknowledging the risks of procedures. Additionally, the principle of volenti non-fit
injuria—meaning that a patient who voluntarily accepts known risks cannot hold the doctor liable—applies when a patient is fully
informed of the risks and consents to the treatment.
In Kishan Rao’s case, Kishan Rao's wife was admitted to Nikhil Super Speciality Hospital with fever and chills but was treated for
typhoid instead of malaria. Her condition worsened, leading to her death at another hospital due to malaria. Kishan Rao sought
compensation for negligence from Nikhil Hospital. The District Forum ruled in his favour, but this decision was overturned by the
State Commission due to lack of expert opinion on the hospital's treatment. The Supreme Court, however, found the case
straightforward and not requiring expert opinion, as it involved clear misdiagnosis. The Court criticised earlier judgments that
mandated expert evidence for all cases, emphasising that consumer courts could proceed in simple cases without it. The Supreme
Court upheld the District Forum's decision and ordered compensation.

VICARIOUS LIABILITY
The principle outlined in the Law of Torts holds that an employer can be held liable for the negligent actions of their employees, a
concept known as vicarious liability. This means that if an employee acts negligently while performing their job duties, the employer
is responsible for the resulting damages. However, this principle does not extend to independent contractors, who are responsible for
their own actions.
In the context of hospitals and healthcare, the liability distribution is as follows:

1. Hospitals are liable for the negligent acts of their resident physicians and interns, who are considered employees.
2. Hospitals are generally not liable for the actions of senior doctors, specialists, or consultants if the hospital has exercised
due care in hiring qualified professionals.
3. Physicians are responsible for the acts of resident doctors and interns under their direct supervision.
4. Physicians and surgeons are not liable for the actions of qualified nurses unless they supervise those actions directly.
5. Physicians are responsible for the negligent referral of patients to incompetent doctors.

Darling v. Charleston Community Memorial Hospital: the hospital was held liable for the negligence of its staff physician. The
physician had attended a patient whose leg had been broken in a football game. Despite the severity of the injury, the physician failed
to consult with specialists in the orthopaedic field. As a result, the patient's leg had to be amputated. The court found that the hospital
was negligent for failing to direct the physician to seek expert consultation.

Achutrao Haribhau Khodwa v. State of Maharashtra the government was not held vicariously liable for the negligence of a
doctor. The doctor had performed a sterilisation operation on a woman, but the woman later gave birth to a child. The woman sued the
government, claiming that the doctor had been negligent in performing the operation. However, the court ruled that the doctor was not
liable, as there is no guarantee that a sterilisation operation will be 100% effective.

Product Liability in Medical Context

Product liability concerns arise when a patient suffers injury, damage, or death due to faulty or defective medical or surgical
equipment. In such cases, the responsibility often lies with the manufacturer of the equipment rather than the doctor or hospital. The
injured party should sue the manufacturer, needing to prove that the equipment was defective. Even if equipment has functioned well
historically, faults can emerge from poor design, substandard materials, or improper assembly. The manufacturer is accountable for
these defects.

Negligence of Medical Staff

A medical practitioner can be held liable for the negligent actions of staff like nurses, students, or assistants if they are employed and
directly supervised by the practitioner. This is known as vicarious liability. However, the practitioner is not liable if the negligence
occurs in their absence, or if staff were competent and instructions were followed. For example, if a foreign object is left inside a
patient after surgery, the surgeon is responsible, even if the surgical nurse was negligent in counting instruments.

In Mohan v. Osborne: it was established that the standard of care expected from a healthcare professional is that of an ordinarily
good and careful practitioner in similar circumstances. This means that the hospital cannot simply delegate its duty of care to its
employees and avoid liability for their negligence.

In Gold v. Essex County Council: a hospital was held liable for the negligence of a radiographer who caused facial burns to a child.
The court emphasized that the hospital had a duty to ensure that its employees were competent and properly supervised, even if they
were acting under the supervision of another healthcare professional.
The principle from these cases is that hospitals are generally liable for the negligence of their employees, even if they are acting under
the supervision of another healthcare professional. This is because hospitals have a duty to provide safe and effective healthcare to
their patients, and this duty includes ensuring that their employees are competent and careful in their work.