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1 Dr. Suresh Vasistha MBBS, MS, FAIS, FAMS, FIAGES LLB Governing Council Member & Jt. Secretary Association of Surgeons of India Consultant General and Laparoscopic Surgeon & Medico legal Consultant Mangalam Hospital & Samvit Healthcare, Gurgaon

2 Medical Negligence

3 Pleader Police Print & Electronic Media Politician Public

4 What is Negligence? The breach of a duty caused by the omission to do something, which a reasonable man guided by those considerations would do, or doing something which a prudent and reasonable man would not do. Three Elements : 1. Legal duty to exercise due care ; 2. Breach of the said duty;

5 Basic relevant facts Treatment is bound to have risks, complications & deaths in some cases Doctor tries his best to attain good results Medical practice is largely un-regulated Doctor-patient relationship has changed from fiduciary to contractual & sometimes exploitation kind of relationship Commerce, competition and lust has enhanced these problems Tendency to encash an unfortunate outcome

6 Basic legal Principles Burden of proof lies on the complainant to prove his allegations Standard of proof required in medical negligence cases is higher than in other cases Medical expert evidence is necessary to prove medical negligence Criminal medical negligence means gross negligence or recklessness

7 How do the courts decide medical negligence? What does a prudent patient expect under similar circumstances (prudent patient test) What does a prudent doctor do (or does not do) under similar circumstances (prudent doctor test) Indian courts usually follow the prudent doctor principle

8 Prudent doctor (Bolam s test) Courts basically evaluate whether you had treated the patient prudently, in the manner acceptable by a credible body of medical opinion Negligence is defined as want of reasonable degree of care and skill

9 Reasonable degree The measure is the standard of an average doctor rather than the best or the most perfect one, under the circumstances

10 BOLAM v. FRIERN HOSPITAL MANAGEMENT COMMITTEE (1957) 2 All ER). Fact of the Case : John Hector Bolam suffered from depression and was treated at the Friern Hospital in 1954 by E.C.T. (electroconvulsive therapy). He was not given any relaxant drug, however, nurses were present on either side of the couch to prevent him from falling off. When he consented for the treatment, the hospital did not warm him of the risks, particularly that he would be given the treatment without relaxant drugs.

11 He sustained fractures during the treatment and sued the hospital and claimed damages for negligence. Experts opined that there were two practices accepted by them: treatment with relaxant drugs and treatment without relaxant drugs. Regarding the warning also, there were two practices prevalent: to give the warning to the patients and also to give the warning only when the patients ask about the risks. The court concluded that the doctors and the hospital were not negligent.

12 Legal Position- Bolam Test: In the leading case BOLAM v. FRIERN HOSPITAL MANAGEMENT COMMITTEE (1957) 2 All ER). : It is sufficient if doctor exercises the ordinary skill of an ordinary competent man exercising that particular art. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care.

13 In the case of medical man, negligence means failure to act in accordance with the standards that reasonably competent medical man would have applied at that time. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a credible body of medical man skilled in that particular art.

14 Civil or Criminal Liability

15 Civil or Criminal Liability Dr. Suresh Gupta vs Government of N.C.T. of Delhi and Anr CrilLJ 3870 Civil Liability : Whenever a patient dies due to medical negligence, the doctor is liable In civil law for paying the compensation. Criminal Liability : Only when the negligence is so gross and doctors act is so reckless as to endanger the life of the patient, can attract criminal law for offence.

16 Medical Negligence with Criminal Liability : Criminal liability of a physician may result from a high degree of negligent conduct. Indian Penal Code, sections 52, 80, 81, 88, 90, 91, 92, 304A, 337 and 338 can be applicable for the medical malpractice in India. When FIR is filed against a doctor for the death of patient - this Indian Penal Code Section 304A - the doctor can be arrested. If proved guilty, the doctor can be punished with a maximum of 2 years imprisonment or fine or both. But if the patient is alive, the doctor is charged under the Indian Penal Code --sections 337 and 338.

17 Medical negligence If you have done what is not done or not done which is generally done, by an average prudent doctor with similar qualifications, experience and facilities, under similar circumstances, you are said to have committed medical negligence

18 What is not negligence Occurrence of a complication / death Difference of opinion Error of judgment Medical accidents Choosing one of several acceptable options Failure of result Refusing to treat a patient (except providing first aid in an emergency)

19 Case law on therapeutic privilege Dr Thomas v Smt. Elisa, AIR 1987 The patient presented with life threatening peritonitis following a perforated appendix. Patient was not in a position to give consent and no relative was available. He died as the doctor failed to operate, for want of consent. The doctor was held guilty of negligence for not operating on a patient with life - threatening peritonitis. The court held that it is the doctor s ethical and legal duty to treat the patient to best of his ability and the lack of valid consent is not a constraint in lifethreatening situations. This view was reiterated by the Supreme Court in Paramanand Katara v UOI

20 Landmark case Decided On: Appellants: Jacob Mathew Vs. Respondent: State of Punjab and Anr. Hon'ble Judges: R.C. Lahoti, C.J., G.P. Mathur and P.K. Balasubramanyan, JJ.

21 Guidelines - re: prosecuting medical professionals A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's tes to the facts collected in the investigation.

22 Guidelines Cont A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

23 Landmark Case IN THE SUPREME COURT OF INDIA CIVIL APPEAL NO OF 2002 Martin F. D'Souza.. Appellant -versus- Mohd. Ishfaq.. Respondent MARKANDEY KATJU, J.

24 Para 111 We have carefully pursued the judgment of the National Commission and we regret that we are unable to concur with the views expressed therein. The Commission, which consists of laymen in the field of medicine, has sought to substitute its own views over that of medical experts, and has practically acted as super-specialists in medicine. Moreover, it has practically brushed aside the evidence of Dr. Ghosh, whose opinion was sought on its own direction, as well as the affidavits of several other doctors (referred to above) who have stated that the appellant acted correctly in the situation he was faced.

25 Para 112 The Commission should have realized that different doctors have different approaches, for instance, some have more radical while some have more conservative approaches. All doctors cannot be fitted into a straight-jacketed formula, and cannot be penalized for departing from that formula.

26 Para 117 We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital.

27 Para 117 This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action.

28 Para 123 The courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.

29 Para 124 It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.

30 Judgment dated March 8, 2010, in the case of V Kishan Rao v/s Nikhil Super Speciality Hospital & Anr. The Supreme Court has now held that this judgment of Martin F D'Souza does not correctly lay down the law and it is not necessary to refer each and every case routinely and blindly for expert opinion. The jurisprudential and conceptual difference of negligence in civil and criminal matters, made it necessary to have an expert opinion in case of criminal prosecution only, and not for civil disputes

31 Res ipsa loquitur Respondent superior Causation Vicarious Liability Contributory Negligence Corporate Negligence Product Liability Novus actus intervenience Comparative Negligence

32 Sishir Ranjan Saha v. State of Tripura; Guwahati High court decided on 6 th April, Facts: The victim of the road accident was brought to a hospital. He needed major surgery. The specialist doctor was not available as he was busy attending to the other patients and did not respond to the call of emergency. The victim filed a suit in the court claiming compensation. Issue: whether the doctor was liable for not attending to the victim. Judgment: the court held that the doctor was liable for not attending the emergency patient in time especially after claiming to provide

33 Sridevi s mother vs Sloan- Kettering Hospital New York. Fact : Mrs. Rajeshwari Ayyappan, mother of the film star Sridevi, underwent surgery for an intracranial tumor. An Israeli surgeon practicing in USA operating on Sridevi s mother tried to operate on the wrong lobe (the brain has two lobes left and right). The neurosurgeon at Sloan-Kettering Hospital operated on the wrong side of the brain. The x-ray report had got mixed up with somebody else s x-ray reports whose report showed the other lobe. Her mother died; case filed for negligence and Sridevi got 25 million Dollars as compensation.

34 Tarun kumar Pramanik vs. Dr. Kunal Chakraborty & Ors. (1995 (2) CPR 545) Fact : the Complainant alleged that during the operation for left inguinal hernia, his left testis was removed negligently and without consent. On account of this patient suffered and has become handicapped. On the basis of evidence placed on record, and on the basis of opinion of expert witness it was held that removal of testis was done to avoid gangrenous infection, operation was done with reasonable care and skill and had not resulted in any handicap. Judgment : Court held that Complaint filed by the complainant is frivolous complaint and complainant held liable to pay the cost to the doctor.

35 Shubh Lata vs Christian Medical college (Punjab SCDRC o.s. no. 14 of 1994 decided on ) Fact : complainant alleged that her husband died due to the complications arising after kidney biopsy. The state commission held that the complainant had suppressed the crucial facts in her complaint. Besides serious life threatening diseases, the deceased was already suffering from TB and serious infection of the body by bacteria. This are very serious diseases with a very high mortality rate especially when the heart, lung and brain got infected. Judgment : Court held that the complainant had not come with clean hands and thus disentitled herself to relief under this jurisdiction of the consumer forum. Complaint dismissed with Rs. 1,500/- cost.

36 THANK YOU

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