Jacob Mathew.doc

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Summary of the facts Jiwan Lal Sharma was a patient in the hospital concerned. On feeling difficulty in breathing, a doctor was called for to attend to him. The doctor was 20-25 minutes late. Finally, 2 doctors arrived. An empty oxygen cylinder was then connected to the patients mouth which further wasted time. The cylinder from the adjoining room was then brought, but efforts to make it functional failed. The patient finally died. An offence under section 304-A/34 was registered. The doctors sought to quash the FIR, but failed in the forums below. Therefore the petition came to the Supreme Court under special leave. The matter originally came up before a 2 judge bench of the court. The appellant relied on a 2 judge bench decision of the court in Suresh Gupta v. Govt of NCT of Delhi1. In the aforesaid case the doctor had performed an operation which was neither serious nor complicated but resulted in the patient’s death. The cause was found to be not introducing an instrument of the appropriate size to prevent aspiration of the blood from the wound in the respiratory passage. The court in the case held that for this act of negligence, the doctor maybe liable in tort but his carelessness or want of due attention and skill did not amount to a gross negligence which was the requirement for criminal negligence. The 2 judge bench in the matter at hand differed with the above on 2 grounds: 1. Negligence being ‘gross’ is not required as per S.304-A of the IPC and this cannot be read into it. 2. Separate treatment with regard to negligence cannot be given to doctors and others. Therefore the case was given to a 3 judge bench to deal with and there were primarily 2 issues at hand: 1. Is there a difference between civil and criminal law in negligence? 2. Whether a different standard of negligence is applicable for professionals and doctors in particular?
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(2004) 6 SCC 422

Negligence The court first looked into various case laws and law books and arrived at the three essential components of ‘negligence’. ‘Duty’, ‘breach’ and ‘resulting damage’. 1. Presence of a duty of care of the defendant towards the complainant 2. Breach of the duty- by failure to execute the standard of care as prescribed by law 3. Damage caused by the breach and recognized by law After establishing the general domain of ‘negligence’ the court went on to proceed with the first issue. The court held that negligence under civil and criminal law was very different. • In civil law it is the amount of damages incurred which determines the extent of liability whereas in criminal law it is the amount of negligence exhibited which determines the liability. • The court examined various cases decided by this court, the Privy Council as well as a few English cases and placed reliance on them while holding that negligence would be an omission to do that which a reasonable man would do or not do as the case maybe. Here a reasonable man is that who is guided upon those considerations which regulate the conduct of human affairs. However, criminal negligence is the failure to exercise reasonable and proper care (gross) to prevent injury either to the general public or to a particular individual which having regard to the circumstances out of which the charge has arisen was the imperative duty of the accused. • • Therefore, for civil liability, a simple lack of acre is sufficient however for criminal liability a very high degree of negligence is required. The court further went on to give importance to the concept of mens rea in criminal negligence. Recklessness is said to constitute mens rea for negligence in criminal law. Here mens rea lies not in the desire to harm but in the disregard of the possible ensuing consequences.



In order to hold the existence of criminal negligence it would be necessary to show that the negligence was to such a degree that the person taking or omitting to take the action in question knows that injury was most likely imminent as a result of that action.

The Court after settling on the ground that there existed a difference in negligence in tort and criminal negligence went on to proceed with the second issue. (Separate standard of establishing negligence) • In a professional service, there is a requirement of a special skill and it can only be performed by such an individual who possesses that requisite skill. Any professional impliedly assumes to anyone dealing with him that he will exert in performance a reasonable degree of care in exercise of that skill. He never ensures definite results to his client. Ex: a surgeon never guarantees a 100% successful result with respect to his surgery but merely that he would perform the surgery with reasonable care. • Therefore, it is imperative in order to establish professional negligence that one of two conditions have been fulfilled: 1. He did not have the required skill 2. He did not display reasonable competence in the exercise of such skill It is not possible to apply the highest level of expertise or skills. Therefore a standard of an ordinary competent person is to be applied. The court subsequently went on to address medical negligence specifically and stated that this concept was a little different. • • A tendency always exists to blame someone. Especially when death is involved or something goes wrong. The human body is very complex and equally complex is the practice of medicine. Therefore very often the contribution of a doctor to patients death can be blameless.

• •

Further, no sensible professional would intentionally commit an act of negligence as the professional’s reputation is at stake. Professional negligence is required to be punished in order to make life safer and prevent recurrence of negligence in the future.

The law established in the Bolam case2 is widely accepted as the decisive standard of care required of medical practitioners. The test is the standard of the ordinary skilled man exercising and professing to have the ordinary skill. However there are three things to be kept in mind while applying the Bolam test as held by the court in the present matter. 1. The standard of care applied is judged in light of the knowledge available at the time of the incident and not the trial. 2. If charge arises due to failure to use particular equipment and such equipment would not generally be available at the time of the incident then the charge would fail. 3. Precautions taken to be assessed from the point of view of ordinary experienced man and not special or extraordinary precautions which might have prevented the happening. Further the court went on to state that accident or error of judgment need not be negligence. It depends on it nature. If the error is such that it would not have been made by a reasonable competent professional exercising ordinary care and possessing adequate skill then it would amount to negligence. However, the court pointed out that a high element of risk exists in the medical profession. Sometimes a medical practitioner is required to choose between a procedure involving high risk but greater success or low risk but greater chance of failure. Here, it must be established that the procedure was acceptable in medical science and cannot be liable merely due to its failure.

2

(1957) All ER 118 p.121

The court after having dealt with the concept of medical negligence went into the aspect of what would qualify as criminal medical negligence. Again, various cases were looked into and medical books such as Errors, Medicine and the Law3 were consulted. • • The court reasoned that a medical practitioner faced with an emergency ordinarily would give his best in ridding the patient of his suffering If a medical practitioner feels the threat of criminal prosecution, he will be reluctant to take those high risk yet life saving decisions and thus would leave the patient to his end. • The court went on to show that medical practitioners have been treated differently and placed on a pedestal. The court discussed sections 88, 92 and 93 and the illustration therein to prove the special status of these medical professionals. • The court then held that though ‘gross’ has not been used in S.304-A yet it is settled that the negligence must be of a high degree or gross. Thus gross must be read into the provision. • Thus applying the Bolam test to the case, court held that the doctors were not in fact liable but perhaps the hospital could face civil liability for not having the oxygen cylinders as per need. Guidelines issued by the court • • The Government of India must issue guidelines in consultation with the Medical Council of India. Till the above guidelines come into force, the court prescribed certain interim guidelines: 1. A private complaint shall not be admitted unless prima facie evidence is produced in the form of credible opinion of a competent doctor to support the charge.

3

Merry, Alan & McCall, Alexander, (Cambridge Uiversity Press,2001)

2. the investigating officer is required to independently and prior to the proceedings gather a competent and unbiased opinion from a doctor preferably in government service competent in that branch of practice. 3. a doctor may not be arrested in a routine manner unless it is necessary for furthering investigation or for collecting evidence or he would not make himself available to face prosecution. Critique The guidelines established in the above case still apply to medical negligence as no government guidelines have emerged even four years down the line. This case has formed a binding precedent and has been reiterated in numerous subsequent judgments which have been required to follow it. Some include: • Kusum Sharma v. Batra Hospital4

• Ins. Malhotra v. Dr.A.K.Kriplani5
Liability, both civil and criminal, was again an issue in the latest Supreme Court decision in Martin F. D'Souza v. Mohd. Ishfaq6. The matter came before the Supreme Court by way of an appeal against the judgment of the National Consumer Redressal Commission awarding substantial compensation to the complainant for having suffered hearing impairment resulting from administration of heavy doses of Amikacin for a prolonged period. The Supreme Court disagreed with the Commission's finding of negligence mainly on account of the complainant being a patient of renal failure awaiting transplant, facing other graver health risks. “It is evident from the fact that the respondent was already seriously ill before he met the appellant. There is nothing to show from the evidence that the appellant was in any way negligent, rather it appears that the appellant did his best to give good
4 5

(2010) 3 SCC 480 (2009) 4 SCC 705 6 (2009) 3 SCC 1

treatment to the respondent to save his life but the respondent himself did not cooperate.”

In light of this case also the following is examined:7

Weakening authority of Bolam case in common law jurisdictions The limits imposed on medical negligence liability by Bolam case have been put to test in a series of decisions in several other common law jurisdictions such as Australia, Canada and the United States and even in the United Kingdom itself. Although Bolam case remains the leading authority in medical negligence cases, but in at least three areas the authority has been considerably weakened in the recent years: (i) Duty to disclose risks and provide information and advice In Rogers v. Whitaker8 the Australian High Court while affirming a decision of the New South Wales Supreme Court laid down that a medical practitioner has a duty to warn the patient of a material risk inherent in the proposed treatment. A risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it. The aforesaid duty towards the patient of answering all his questions about treatment and risk truthfully had never been addressed to in the Bolam approach. Thus, in the field of non-disclosure of risk and the provisions of advice and information the decision in Rogers has virtually discarded Bolam.

ii) The court's duty to embark on a risk-benefit analysis to assess the acceptability of treatment In Bolitho v. City and Hackney Health Authority 9 the Court got away from yet another aspect of Bolam case that could be described as an “no escape route” for the medical practitioner's liability.

7

Prof.B.B.Pande, Why do Indian Patients not deserve the highest expert skills from doctors? (2009) 4 SCC J-15 8 (1992) 109 Aus LR 625 9 (1998) 1 AC 232

The court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. The use of these adjectives — responsible, reasonable and respectable — all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.

(iii) Patient's right to make informed choice The Supreme Court of Canada in Reibl v. Hughes10 related the doctor's duty to warn the patient based on the patient's right to know the material risk, a right which in turn arises from the patient's right to decide for himself or herself whether to submit or not to the proposed medical treatment.

Two lines of judicial authorities on medical negligence liability in India In India in respect of claims for medical negligence the judicial rulings of the Supreme Court of India and of the State High Courts can be put in two distinct lines. The first line, that favours a limited liability based on “ordinary professional standard”, as laid down in Bolam case. The second line, that favors expanding the sphere of medical profession's liability and demanding a higher duty of care towards the patient and his relatives, particularly where medical expertise is provided on a commercial basis

The first limited liability and modest standard of care line is of course best illustrated by the Supreme Court ruling in Jacob Mathew v. State of Punjab.

10

(1980) 114 DLR 3d 1

The second line which is relatively less articulate so far has been taken in Spring Meadows Hospital v. Harjol Ahluwalia11. The case relates to administration of Lariago injection to a minor without sensitivity test leading to collapse, severe brain damage resulting in a vegetative existence. The hospital was a commercially run private hospital. “… Organisations who in the garb of doing service to the humanity have continued commercial activities and have been mercilessly extracting money from helpless patients and their family members and yet do not provide the necessary services. The influence exhorted by a doctor is unique. The relationship between the doctor and the patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner”

The Supreme Court seems to have taken the second line again in Indian Medical Assn. v. V.P. Shantha12 when it refused to accept the argument of the Indian Medical Association that medical practitioners cannot be treated as providing service in terms of Section 2(1)(o) of the Consumer Protection Act, 1986. The Court therein held the view that excepting medical services rendered at government hospitals/health centres or dispensaries where no charges are taken from any patient, all other paid kind of medical services comes under the purview of services under the Act. This in a way strengthens the argument that all paid professionals can be subjected to a different and higher standard of care. The second line that favors greater accountability of medical profession/hospitals has received support from a recent Supreme Court ruling in B. Jagdish v. State of A.P.13, where the Court declined to interfere with the High Court's refusal to quash criminal proceedings for a case of misdiagnosis, despite two sets of opinions, one favouring the accused and the other against him.

11 12

(1998) 4 SCC 39 (1995) 6 SCC 651 13 (2009) 1 SCC 681

The modest standard of care laid down in Bolam case might have served the needs of a mid-twentieth century society, which was relatively free from the vices of economism and technology dependence. In those days usually the clients knew the doctor personally and willingly bore the economic burden of the treatment, including the consultation fees. But today with the organisation of the medical profession in the urban centres on purely business lines, the personal touch and the noble ethics have been overtaken by the considerations of smart business and maximisation of profits. Often there is a division of powers and functions between those who collect the professional charges/fees and those who render medical and other services. Seen from the point of view of a patient: One who is attracted to a commercially run hospital or clinic mainly on account of their superior publicity or propaganda, pays high fees and charges, exposes himself to a totally new and strange environment and gives himself up in the hands of the members of the organisation for surgery and treatment, is it unfair for him to expect best and highest standards of care and treatment? Such higher standard expectations are justified also in view of the organisation's better abilities to control the activities of the “experts” that are employed/permitted to deal with the clients. Finally, a higher duty would also be justified because of the better position of the professionals to distribute the losses. As compared with the clients, the professionals, particularly where they are organised on corporate lines, are in a much better position to pass on the burden of compensation to the large society, by way of enhancing the fees of future clients or by reducing the profits of corporate members.

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