CASE STUDY
WHAT CONSTITUTES MEDICAL NEGLIGENCE ?
Conclusions Laid Down By
Supreme Court Of India
(1) Negligence is the breach of a duty caused 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. The definition of
negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice
G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable
on account of injury resulting from the act or omission amounting to negligence
attributable to the person sued. The essential components of negligence are
three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls
for a treatment with a difference. To infer rashness or
negligence on the part of a professional, in particular a doctor, additional
considerations apply. A case of occupational negligence is different from one
of professional negligence. A simple lack of care, an error of judgment or an
accident, is not proof of negligence on the part of a medical professional. So
long as a doctor follows a practice acceptable to the medical profession of
that day, he cannot be held liable for negligence merely because a better
alternative course or method of treatment was also available or simply because
a more skilled doctor would not have chosen to follow or resort to that
practice or procedure which the accused followed. When it comes to the failure
of taking precautions what has to be seen is whether those precautions were
taken which the ordinary experience of men has found to be sufficient; a
failure to use special or extraordinary precautions which might have prevented
the particular happening cannot be the standard for judging the alleged
negligence. So also, the standard of care, while assessing the practice as
adopted, is judged in the light of knowledge available at the time of the
incident, and not at the date of trial. Similarly, when the charge of
negligence arises out of failure to use some particular equipment, the charge
would fail if the equipment was not generally available at that particular time
(that is, the time of the incident) at which it is suggested it should have
been used.
(3) A professional may be held liable for negligence on one of the two
findings:
either he was not possessed of the
requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given
case,
the skill which he did possess. The standard to be applied for judging, whether
the person charged has been negligent or not, would be that of an ordinary
competent person exercising ordinary skill in that profession. It is not
possible for every professional to possess the highest level of expertise or
skills in that branch which he practices. A highly skilled professional may be
possessed of better qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional proceeded against on
indictment of negligence.
(4) The test
for determining medical negligence as laid down in Bolam's case[1957]
1 W.L.R. 582 holds
good in its applicability in India.
(5) The jurisprudential
concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence
in criminal law. For negligence to amount to an offence, the element of
mens rea must be shown to exist. For an act to amount to criminal negligence,
the degree of negligence should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a higher degree may provide a
ground for action in civil law but cannot form the basis for prosecution.
(6) The word
'gross' has not been used in Section 304A of IPC, yet it is settled that in
criminal law negligence or recklessness, to be so held, must be of such a high
degree as to be 'gross'. The expression 'rash or negligent act' as occurring in
Section 304A of the IPC has to be read as qualified
by the word 'grossly'.
(7) To prosecute a medical professional for negligence under criminal
law it must be shown that the accused did something or failed to do something
which in the given facts and circumstances no medical professional in his
ordinary senses and prudence would have done or failed to do. The hazard taken by the
accused doctor should be of such a nature that the injury which resulted was
most likely imminent.
(8) Res ipsa
loquitur is only a rule of evidence and operates in the domain of civil law
specially in cases of torts and helps in determining the onus of proof in
actions relating to negligence. It cannot be pressed in service for determining per se the
liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application
in trial on a charge of criminal negligence.
No comments:
Post a Comment