Medical Negligence and Duty of Care in India
What is negligence and when can a person be held liable for negligence?
In simple terms, Negligence is nothing but a breach of a duty because of the omission to do the act which a reasonable person in ordinary conditions would do or doing an act which a reasonable person would not do.
There are three main essential components of negligence.
They are, 1. Presence of duty on one party, 2. Breach of such duty and 3. Damage caused to the other party due to the breach of duty. Liability of a professional shall arise on two main findings, they are,
- When the professional does not possess the requisite skill which he should have possessed,
- In spite of possession of skill and knowledge, the person did not exercise the same with reasonable competence in a given case.
What amounts to medical negligence and when a person will be held liable for medical negligence?
Medical Negligence arises out of the failure to take the reasonable care and duty which is vested on the medical professionals and as a result of such failure, damage has been caused to the victim.
When there is failure to take due care, then such shall amount to Medical negligence.
In India, Bolam test was heavily relied as a principle in determining whether a doctor is guilty of negligence or not.
One of such principles is that, if a doctor has not acted in accordance with the practice accepted as a proper one by a responsible body of medical men skilled in such art, then such doctor shall be held liable for the medical negligence.
In Civil cases involving negligence, mere preponderance of probability shall be considered in imposing liability, whereas in criminal cases, the party should prove it beyond reasonable grounds leaving no doubt in the minds of judiciary.
What is Threshold to measure the liability for Medical Negligence?
Mere change of treatment from an ordinary treatment shall not make the concerned doctor liable.
It has to be proved that there was breach of duty.
Once the breach of such duty is established then such a doctor shall be held liable for the offence of medical negligence.
The petitioner or the victim should prove – there was error in judgment because of the negligent act on part of the accused doctor.
- Duty of care by the Doctors and the Hospital:
Duty of care as a result of presence of fiduciary relationship between the Doctors and their patient:
Duty of care by the doctors on the patients emerges out of the fiduciary relationship between the doctors and the patients.
The term fiduciary relationship refers to the duty to act by one person for the benefit of the other party. In case of medical profession, the doctors shall have the duty to act for the benefit of the patients.
Determination of the existence of fiduciary relationship and duty of care:
The relation between the doctors and their patients are form of contract where the doctor either expressly or implicitly undertakes to serve his/her patient during the course of his medical profession.
It may be express or implied.
This kind of contract shall be brought within the ambit of contract for service and not contract of service, as the latter requires the presence of master servant relation, whereas the former does not.
The service rendered by the doctors and the hospitals has been brought under the purview of the Consumer Protection act, 2019.
This means that the doctors or the hospital shall have the duty of care towards their patients and it is implied that when a doctor renders a service he implicitly make sure that he has the enough skill and knowledge to render the service.
When such a duty is violated, then such an act shall be considered as a medical negligence.
Duties as per the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002
Indian Medical Council regulations 2002 makes regulations relating to the professional misconduct, etiquette and the ethics for the registered medical practitioners.
Chapter 2 of the 2002 regulations deals with duties of the physicians to their patients.
Cases where there was breach of duty of care:
The importance of duty of care by the Doctors and Hospitals was discussed by the Apex court in the landmark case of Laxman Balkrishna Joshi v. Trimbak Bapu Godbole (1968). In the present case, the issue was whether the Doctor was negligent while performing his duty towards his patient as part of his profession or not.
The court observed that when a doctor is ready to serve the patient, he also undertakes to ensure impliedly that he shall have all the required skill and the knowledge for the purpose of serving the patient. So, as per the court, when such a patient consults him/her, such doctor owes certain duties. The Supreme Court in the above case came up with few of the duties that are vested on the doctors as part of medical profession. They are,
- Duty to take care and to decide whether to take the case or not
- Duty to decide what treatment to be given
- Duty of care while administering the said treatment.
In Chandigarh Clinical Laboratory v. Jagjeet Kaur case, the court noted that whether there was harm to the patient or not was not considered as criteria rather whether there was any failure on part of the petitioner to take the due care or not was considered as the main issue while dealing with the matters of duty of care. If a court finds that there was absence of such duty to take care, then the doctors or the hospital shall be liable for medical negligence.
In Joseph alias Pappachan & Anr. v. Dr. George Moonjely, the Kerala HC discussed the liability of the hospital while accepting their patient for treatment. It held that Hospitals, in law, are under same duty as the humblest doctor. Whenever they accept a patient for the treatment, they must use the reasonable care and shill to cure his ailment. Since, the Hospitals cannot do by themselves, they employ the doctors and when such staff doctors is negligent in giving the treatment, then the hospital shall also be liable for that negligence.
In Arpana Dutta vs Apollo Hospitals Enterprises the plaintiff was unable to enjoy the pleasures of the life and she was unable to carry on her normal activities due to the negligence of the defendants in doing the surgery. The first defendant is running the Apollo Hospitals and it was he who is offering medical services. It was held that the terms under which the first defendant employs the Doctors and Surgeons is between them but because of this it cannot be stated that the first defendant can’t be held liable when there is third party involved.
In Rekha Gupta v. Bombay Hospital Trust & Anr. It was observed by the National Consumer Redressal Commission that Hospital cannot escape their liability by merely stating that they provide only the infrastructural facilities, services of nursing staff, supporting staff and that they cannot suo moto perform or recommend any operation or amputation to the deceased. The evidence, through the bills showed that hospital deducts 20% commission from the consultant for the services provided to them. Thus, it held that hospital has employed its staffs and it shall not disown its responsibility on the superficial grounds.
