Medical Negligence

In one line

A doctor is judged by the standard of an ordinarily competent practitioner of his branch, and is not liable merely because the treatment failed or a better course existed.

In the wording a student can write in an exam: medical negligence is the breach by a medical professional of the duty to bring to his task a reasonable degree of skill and knowledge and to exercise a reasonable degree of care; the standard is that of the ordinary competent practitioner exercising and professing to have that special skill, which is the test in Bolam's case adopted for India in Jacob Mathew v. State of Punjab; an error of judgment or an accident is not negligence, and a practitioner who follows a practice acceptable to the profession of the day is not liable merely because a better alternative existed.

The duty a doctor owes

A doctor who accepts a patient owes three duties: a duty of care in deciding whether to take the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of them, causing damage, is actionable.

The standard: Bolam, as adopted in India

Facts. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, decided on 5 August 2005 by three judges. A patient in a hospital at Ludhiana had difficulty breathing at about eleven at night; no doctor came for twenty to twenty-five minutes, and when two arrived the oxygen cylinder connected was, on the complaint's version, empty. The patient died, and the doctors were prosecuted for causing death by a rash or negligent act.

Held. The Court summed up its conclusions. Negligence has three components: duty, breach and resulting damage. Professional negligence calls for a treatment with a difference: a simple lack of care, an error of judgment or an accident is not proof of negligence, and so long as a doctor follows a practice acceptable to the medical profession of the day he cannot be held liable merely because a better alternative course was available or because a more skilled doctor would not have followed that course; what has to be seen is whether the precautions were taken which the ordinary experience of men has found to be sufficient. For criminal liability the negligence must be gross or of a very high degree and mens rea must be shown. Res ipsa loquitur is a rule of evidence in civil law with at most a limited application in a criminal trial. The Court also laid down guidelines for prosecuting doctors: a private complaint should not be entertained unless supported by a credible opinion from another competent doctor, and an investigating officer should obtain an independent and competent medical opinion before proceeding.