Medical Negligence

Facts. Not read, and so not stated. The chapter cites the case for the passage the Supreme Court of India reproduced and for nothing else.

Held. Per McNair J, where a situation involves the use of some special skill or competence, the test of negligence is not the test of the man on the top of a Clapham omnibus, because he does not have that special skill; the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill, and it is sufficient that he exercises the ordinary skill of an ordinary competent man exercising that particular art.

Why it matters here. It is the clearest single statement in the law of what a précising definition does. The general standard is kept, since the question is still whether reasonable care was taken; and the vague part, which is care by whose lights, is decided, by naming a person. Nothing has been added to the law of negligence and nothing has been taken away, and yet the test has become applicable to a case it could not previously reach.

Jacob Mathew: the adoption, and the further narrowing

Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, decided on 5 August 2005, is where the Supreme Court adopted Bolam for India and added to it.

Facts. On 22 February 1995 a patient in a private ward of a hospital in Ludhiana had difficulty breathing. The duty nurse was called and no doctor came for twenty to twenty five minutes. The appellant and another doctor then attended, an oxygen cylinder was connected and the breathing difficulty increased. The cylinder was found to be empty and there was no other in the room; one was brought from an adjoining room and there was no arrangement to make it work, and five to seven minutes were lost before another doctor declared the patient dead. The son lodged a first information report alleging that the death was caused by the carelessness of the doctors and nurses and by the fitting of an empty cylinder, and an offence under section 304A read with section 34 of the Indian Penal Code was registered against the two doctors. The Judicial Magistrate framed charges; the Sessions Judge and the High Court declined to interfere; and the doctor appealed.

Held, on negligence generally. Negligence is the breach of a duty caused by omission to do what a reasonable man guided by the ordinary considerations regulating human affairs would do, or by doing what a prudent and reasonable man would not do, and its three essential components are duty, breach and resulting damage.

Held, on the difference for a professional. Negligence in the context of the medical profession calls for a treatment with a difference: a simple lack of care, an error of judgment or an accident is not proof of negligence in a medical professional, and so long as a doctor follows a practice acceptable to the medical profession of that 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 practice.

Held, on precautions and on time. Where a failure to take precautions is alleged, what must be seen is whether the precautions were taken which the ordinary experience of men has found sufficient, a failure to use special or extraordinary precautions not being the standard; the practice is judged in the light of the knowledge available at the time of the incident and not at the date of trial; and a charge founded on the failure to use particular equipment fails if the equipment was not generally available at that time.

Held, on the two grounds of liability. A professional may be held liable on one of two findings, either that he did not possess the requisite skill he professed to possess, or that he did not exercise with reasonable competence the skill he did possess, the standard being that of an ordinary competent person exercising ordinary skill in that profession. The Court held expressly that the test in Bolam's case holds good in its applicability in India.

Why it matters here. Because the précising is visible in stages. Bolam replaced the person. Jacob Mathew then excluded three things from the class: an error of judgment, a choice among practices acceptable to the profession, and a failure to take extraordinary precautions or to use equipment not then generally available. Each exclusion is a further narrowing of the definition, made because the general standard, applied without them, would have reached cases the court thought it should not.

The definition as it now stands, set out as a checklist

The exercise of Module IV is to turn a judicial test into the two-part form of sequence 550, and it can be done here.

Genus. Negligence: a duty, a breach and resulting damage.

Differentia, in four parts.

One, the standard is the ordinary competent practitioner of that art, not the reasonable man, and not the most skilled practitioner available.

Two, the two grounds of liability are exhaustive: either the defendant did not possess the skill he professed, or he did not exercise with reasonable competence the skill he had.

Three, the time is the time of the incident. The practice is judged by the knowledge then available, and by the equipment then generally available.

Four, three things are excluded: an error of judgment; a choice among practices acceptable to the profession of that day; and the omission of special or extraordinary precautions, as opposed to those which ordinary experience has found sufficient.

That is a définition, and it was built entirely by adjudication.

A worked example

A patient is admitted with abdominal pain. The surgeon, following a practice used by many surgeons in the country, orders a scan and operates the following morning. A minority of surgeons would have operated at once. The patient dies of a complication that immediate surgery would probably have prevented. A more experienced surgeon in a better equipped hospital would have used a technique not generally available in that town in that year.

Apply the checklist.

Genus. There is a duty and there is damage. The question is breach.

Differentia one, the standard. The surgeon is measured against the ordinary competent surgeon, not against the more experienced one in the better hospital.

Differentia two, the two grounds. Did he lack the skill he professed? Nothing suggests it. Did he fail to exercise it with reasonable competence? That is the real question.

Differentia three, the time. The technique not generally available in that town in that year is excluded from the comparison.

Differentia four, the exclusions. He followed a practice acceptable to the profession of that day. That a minority would have done otherwise, and that the minority would have been right in this case, is not enough: the choice among accepted practices is expressly excluded.

The answer. On these facts negligence is not made out, and the reason is not that the death was excusable but that the définition does not reach it. A student who argues from the outcome has argued from the wrong end: the test is about the conduct at the time and not about the result.

And the point of the example for a logic paper. Every one of the five steps was an application of a définition to a case, and the définition came from two judgments and no statute. That is MU's third example doing exactly what MU set it to do.

Distinctions that carry marks

What this does not mean

The standard is not that of the best practitioner. It is the ordinary competent one, and Jacob Mathew says so in terms: a highly skilled professional may have better qualities, and that cannot be made the yardstick.

It is not lower than the general standard. It is a different standard, applied to a different question, and in many respects it is more demanding, since the ordinary competent practitioner knows a great deal the reasonable man does not.

A bad outcome is not negligence. The three exclusions in Jacob Mathew exist precisely because a poor result is compatible with entirely competent care.

Quick revision

No statute defines it. The Consumer Protection Act 2019 defines "service" at s.2(42) and "deficiency" at s.2(11), and s.2(11) defines deficiency partly by negligence, leaving negligence itself to the courts.

General negligence: duty, breach, damage, measured by the reasonable man, who has no special skill.

Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586, decided in 1957: the test is the standard of the ordinary skilled man exercising and professing to have that special skill; not the highest expert skill.

Jacob Mathew v. State of Punjab, AIR 2005 SC 3180: Bolam holds good in India; a simple lack of care, an error of judgment or an accident is not proof of negligence; a doctor following a practice acceptable to the profession of that day is not liable because a better alternative existed; knowledge and equipment are judged as at the time of the incident; liability rests on not possessing the skill professed, or not exercising with reasonable competence the skill possessed.

As a definition: genus negligence, differentia the ordinary competent practitioner, two exhaustive grounds, the time of the incident, and three exclusions.

Test yourself

1. Why is medical negligence the hardest of MU's three examples?

Because nothing defines it. Nuisance is divided by statute on one side and consent is précised by the legislature in a run of sections, but no enactment defines medical negligence. The Consumer Protection Act 2019 defines "service" and "deficiency", and its definition of deficiency at section 2(11) expressly includes any act of negligence, so it uses negligence rather than defining it. The whole zone of decision is left to the courts.

2. State the Bolam test and explain what it précised.

Per McNair J, where a situation involves the use of some special skill, the test of negligence is not the test of the man on the top of a Clapham omnibus, because he does not have that skill; the test is the standard of the ordinary skilled man exercising and professing to have that special skill, and it is sufficient that he exercises the ordinary skill of an ordinary competent man exercising that art. It précised the general standard by replacing the person against whom the defendant is measured, which decided the vague question of care by whose lights without altering anything else in the law of negligence.

3. What did Jacob Mathew add to Bolam?

It adopted Bolam for India in terms, and then narrowed the definition further. A simple lack of care, an error of judgment or an accident is not proof of negligence in a medical professional. A doctor who follows a practice acceptable to the medical profession of that day is not liable merely because a better alternative was available or because a more skilled doctor would have chosen otherwise. Precautions are judged by what ordinary experience has found sufficient, and knowledge and equipment are judged as at the time of the incident, not at the date of trial.

4. On what two findings may a professional be held liable?

Either that he was not possessed of the requisite skill which he professed to possess, or that he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard for judging is that of an ordinary competent person exercising ordinary skill in that profession, and the Court added that a highly skilled professional may have better qualities but that these cannot be made the yardstick for judging the person charged.

5. Set the definition out as genus and differentia.

The genus is negligence, consisting of a duty, a breach and resulting damage. The differentia has four parts: the standard is the ordinary competent practitioner of that art rather than the reasonable man or the best practitioner; liability rests on one of two exhaustive grounds, want of the skill professed or want of reasonable competence in exercising the skill held; the assessment is made as at the time of the incident, on the knowledge and equipment then generally available; and three things are excluded, an error of judgment, a choice among practices acceptable to the profession of that day, and the omission of extraordinary precautions.

6. A patient dies after a surgeon chose one of two accepted courses, and the other would have saved him. Is the surgeon negligent?

Not on those facts alone. Jacob Mathew excludes exactly this case: so long as a doctor follows a practice acceptable to the medical profession of that day he cannot be held liable merely because a better alternative course or method of treatment was also available, or because a more skilled doctor would not have chosen that practice. The definition is about the conduct at the time and not about the outcome, and arguing from the death to the breach is arguing from the wrong end.