Medical Negligence

Why it matters here. It is the standard, the criminal threshold and the procedural protection, all in one judgment.

And its restatement. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480, sets out a list of principles for deciding medical negligence cases, ending with the proposition that medical professionals are entitled to protection so long as they perform their duties with reasonable skill and competence and in the interest of their patients, whose welfare must be paramount.

Negligence per se: practising a system you are not qualified in

Facts. Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111, decided on 10 May 1996. A registered homeopath treated a patient for a viral fever with allopathic drugs. The patient's condition worsened, he was moved to another clinic and then to a hospital, and he died.

Held. A person registered in one system of medicine who practises another for which he holds no qualification is guilty of negligence per se, and the appeal against the homeopath was allowed on that footing. The Court declined to proceed against the second doctor, because by the time the patient reached him his condition had already been damaged to an unascertainable extent.

Why it matters here. It is the one situation in which the Bolam standard does not have to be worked through: a practitioner outside his own system is negligent without more.

Where the thing speaks for itself

Facts. Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, decided on 20 February 1996. A woman underwent a sterilisation operation in a government hospital. A mop, that is, a surgical towel, was left inside her abdomen; complications followed, a second operation was performed to remove it, and she died.

Held. Leaving a mop inside the abdomen was negligence; the doctors and staff had acted negligently and caused the death; and once death by negligence in a hospital is established, the State is liable to pay damages. The plea that running a hospital was a sovereign function was not accepted.

Why it matters here. It shows res ipsa loquitur working in a hospital, and it is the Indian authority for the State's liability for its hospitals, which chapter [Vicarious Liability of the State] takes further.

The three forums, and what each requires

Facts. V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513, decided on 8 March 2010. A patient was treated for typhoid when she was in fact suffering from malaria, and died. The consumer forums dismissed the complaint on the ground that no expert evidence had been produced.

Held. There is no general rule that expert evidence is required in every case of medical negligence. There may be simple cases in which it is not required, and those are to be decided by the consumer forums under the procedure the Act prescribes; in complicated cases where expert evidence is required, the parties have a right to go to the civil court. The Court also cautioned against deferring too readily to expert evidence.

Why it matters here. It keeps the consumer remedy usable, which matters because section 2 of the Consumer Protection Act 2019 makes medical treatment for consideration a service, and chapter [Medical Services under the Act] works that out.

A worked example

A surgeon operates on Kavita's knee. The operation is a recognised procedure, competently performed, and the knee does not improve.

Is that negligence? No. Jacob Mathew says an error of judgment or a failure of treatment is not negligence, and following a practice acceptable to the profession is enough even if a better course existed.

Change one fact: a swab is left inside the knee. That is Achutrao and it speaks for itself.

Change another: the operation was performed by a dentist. That is Poonam Verma, negligence per se.

Change another: the surgeon did not tell Kavita of a known risk of stiffness. That is a failure of the duty to advise, and is judged by the same standard of a reasonably competent practitioner.

Where should Kavita go? If the facts are simple, a Consumer Commission, which is quick and cheap, and V. Kishan Rao holds that expert evidence is not required in every case. If they are complicated, a civil court. A prosecution requires gross negligence and, under the Jacob Mathew guidelines, an independent medical opinion first.

What it does NOT mean

A bad outcome is not negligence. The law judges the process, not the result.

A second opinion that differs is not proof of negligence. A doctor is not liable merely because a more skilled practitioner would have acted differently.

A patient does not have to bring expert evidence in every consumer case. V. Kishan Rao says so.

A doctor is not immune from prosecution. He is protected by a higher threshold and a procedural safeguard, not by an exemption.

Quick revision

1. Duty: care in deciding to take the case, in deciding what treatment to give, and in administering it.
2. Standard: the ordinary competent practitioner of that branch, the Bolam test as adopted in Jacob Mathew v. State of Punjab, AIR 2005 SC 3180.
3. An error of judgment or an accident is not negligence; a practice acceptable to the profession is a defence.
4. Criminal liability needs gross negligence, mens rea, and, under the guidelines, an independent medical opinion before prosecution.
5. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480: protection so long as duties are performed with reasonable skill and competence in the patient's interest.
6. Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111: practising a system one is not qualified in is negligence per se.
7. Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634: a mop left in the abdomen; the State is liable for negligence in its hospital.
8. V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513: expert evidence is not required in every case.
9. Three forums: civil court, Consumer Commission under the Consumer Protection Act 2019, and criminal court.

Test yourself

1. What standard of care is expected of a doctor in India? That of an ordinarily competent practitioner of the branch of medicine he professes, exercising a reasonable degree of skill, knowledge and care. In Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, the Supreme Court held that 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 is not liable merely because a better alternative existed or because a more skilled doctor would have acted otherwise. What must be seen is whether the precautions taken were those which the ordinary experience of men has found sufficient. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480, restates the principles and holds that medical professionals are entitled to protection so long as they act with reasonable skill and competence in the interest of their patients.

2. When is a doctor criminally liable for negligence? Only where the negligence is gross or of a very high degree and mens rea is shown. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, holds that the jurisprudential concept of negligence differs in civil and criminal law, that the expression rash or negligent act in the penal provision must be read as qualified by the word grossly, and that to prosecute a medical professional it must be shown that he did or omitted something which no medical professional in his ordinary senses and prudence would have done or omitted, the hazard taken being such that injury was most likely imminent. The Court also laid down guidelines: 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. It further held that res ipsa loquitur, being a rule of evidence in civil law, has at most a limited application in a criminal trial.

3. Where may a patient complain, and what does each forum require? Three forums are open. A civil court, where the patient sues in negligence and must prove duty, breach and damage on the balance of probabilities; complicated cases requiring expert evidence belong here. A Consumer Commission, since section 2 of the Consumer Protection Act 2019 makes treatment for consideration a service and a defect in it a deficiency; the procedure is summary, quick and cheap, and V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513, holds that expert evidence is not required in every case, simple cases being decided by the forums on the Act's own procedure while complicated ones may go to the civil court. And a criminal court, where the threshold is gross negligence with mens rea and the Jacob Mathew safeguards apply.

4. "A doctor who practises a system of medicine he is not qualified in is negligent without more." Is that so? Yes. In Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111, a registered homeopath treated a patient for a viral fever with allopathic drugs and the patient died. The Supreme Court held that a person registered in one system who practises another for which he holds no qualification is guilty of negligence per se, and allowed the appeal against him on that footing alone, invoking the maxim sic utere tuo ut alienum non laedas. The reason is that the standard of care is measured by the skill the practitioner professes, and a practitioner who has no qualification in the system he is using cannot meet the standard of an ordinarily competent practitioner of it. The Court declined to hold the second doctor liable, since by the time the patient reached him the damage was already unascertainable.