consequential damages in negligience

8/10/2019 consequential damages in negligience

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Dr. Ram Manohar Lohiya National Law University,

Lucknow

2014-2015

Final Draft

on

Topic: Consequential damages in Negligence

inSubject: LAW OF TORT

Submitted for the project work undertaken in the partial fulfillment of B.A.LL.B. (Hons.) at

Dr. Ram Manohar Lohiya National Law University, Lucknow.

Under the guidance of: Submitted by:

Mr. Radheshyam prasad Harmandeep Singh

Astt. Prof. (Law) Roll No. 63

Dr. RMLNLU (Lucknow) B.A.LL.B.(Hons.)

Ist Semester


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Acknowledgement

Words can never convey what deeds have done.

Writing aproject on any topic is never a single mans job. I am overwhelmed

in all humbleness and gratefulness to acknowledge my depth to all those who

have helped me to put these ideas, well above the level of simplicity and into

something concrete.

I am very thankful to my torts teacher Mrs. Radheshyam Prasad for his

valuable help. He was always there to show me the right track when I

needed her help. With the help of her valuable suggestions, guidance

and encouragement, I was able to complete this project work.

I would also like to thank my friends, who often helped me and gave me

support at critical junctures during the making to this project.

I hope you will appreciate the hard work that I have put in this project work.

Harmandeep Singh

SectionA

Roll No.63


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Table of contents

Introduction4

What is negligence.4

Essentials for proving negligence.5

Damages 5

Types of Damages.6

Present day scenario..6

Some of the leading cases.8

Defences....24

Remedy..25

Bibliography..29


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INTRODUCTION

In the law of negligence, professionals such as doctors and surgeons are included in the category

of persons professing some special skill or skilled persons generally. A doctor would not assure

the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result

of surgery would invariably be beneficial, much less to the extent of 100% for the person

operated on. The only assurance with such a professional can give or can be understood to have

given by implication is that he is possessed of the requisite skill in that branch of profession

which he is practising and while undertaking the performance of the task, he would be exercising

his skill with reasonable competence. This is all what the person approaching the professional

can expect.

Judged by this standard, a professional may be held liable for negligence on one of 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

above factors determine the negligence in medical profession, hence known as medical

negligence.

Negligence

Negligence is failure to exercise the care that a reasonably prudent person would exercise in likecircumstances. The area of tort law known as negligenceinvolves harm caused by carelessness

or not intentional harm.

According to Jay M. Feinman of the Rutgers University School of Law;

"The core idea of negligence is that people should exercise reasonable care when they act

by taking account of the potential harm that they might foresee cause harm to other

people."

"those who go personally or bring property where they know that they or it may come into

collision with the persons or property of others have by law a duty cast upon them to use

reasonable care and skill to avoid such a collision."

Through civil litigation, if an injured person proves that another person acted negligently to

cause their injury, they can recover damages to compensate for their harm. Proving a case for

negligence can potentially entitle the injured plaintiff to compensation for harm to their

body, property, mental well-being, financial status, or intimate relationships. However,

because negligence cases are very fact-specific, this general definition does not fully explain


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the concept of when the law will require one person to compensate another for losses caused

by accidental injury. Further, the law of negligence at common law is only one aspect of the

law of liability. Although resulting damages must be proven in order to recover

compensation in a negligence action, the nature and extent of those damages are not the

primary focus of negligence cases

Essentials for proving negligence

A person who alleges negligent must prove four elements:

A duty of care was owed by the person.

The person violated the applicable standard of care.

The person suffered a compensable injury.

The injury was caused in fact and proximately caused by the substandard conduct.

Causation may also be a vigorously litigated issue because a physician may allege that the

injuries were caused by physical factors unrelated to the allegedly negligent medical treatment.

For example, assume that a physician is sued for the negligent prescription of a drug to a patient

with coronary artery disease and that the patient died of a heart attack. The plaintiff's estate

cannot recover damages for the heart attack unless there is sufficient proof to show that the

medication was a contributing cause.The critical element is standard of care, which is concerned

with the type of medical care that a physician is expected to provide. Until the 1960s the standard

of care was traditionally regarded as the customary or usual practice of members of the

profession. This standard was referred to as the "locality rule," because it recognized the custom

within a particular geographic area. This rule was criticized for its potential to protect a low

standard of care as long as the local medical community embraced it. The locality rule also was

seen as a disincentive for the medical community to adopt better practices.

Damages

Damages place a monetary value on the harm done, following the principle of restitutio in

integrum (Latin for "restoration to the original condition"). Thus, for most purposes connected


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with the quantification of damages, the degree of culpability in the breach of the duty of care is

irrelevant. Once the breach of the duty is established, the only requirement is to compensate the

victim.

One of the main tests that is posed when deliberating whether a claimant is entitled to

compensation for a tort, is the "reasonable person". The test is self-explanatory: would a

reasonable person be damaged by the breach of duty. Simple as the "reasonable person" test

sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge

or the jury that can be based on limited facts. However, as vague as the "reasonable person" test

seems, it is extremely important in deciding whether or not a plaintiff is entitled to compensation

for a negligence tort.

Damages are compensatory in nature. Compensatory damages addresses a plaintiff/claimant's

losses (in cases involving physical or mental injury the amount awarded also compensates for

pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff

back in the position he or she was before Defendant's negligent act. Anything more would

unlawfully permit a plaintiff to profit from the tort.

Types of damage

Special damages- quantifiable dollar losses suffered from the date of defendant's negligent

act up to a specified time. Special damage examples include lost wages, medical bills, and

damage to property such as one's car.

General damages- these are damages that are not quantified in monetary terms. A general

damage example is an amount for the pain and suffering one experience from a car collision.

Lastly, where the plaintiff proves only minimal loss or damage, or the court or jury is unable

to quantify the losses, the court or jury may award nominal damages.

Punitive damages- Punitive damages are to punish a defendant, rather than to compensate

plaintiffs, in negligence cases. In most jurisdictions punitive damages are recoverable in a

negligence action, but only if the plaintiff shows that the defendants conduct was more than

ordinary negligence (i.e., wanton and willful or reckless).

Present day scenario

Most states have modified the locality rule to include both an evaluation of the customary

practices of local physicians and an examination of national medical standards. Physicians are

called to testify as expert witnesses by both sides in medical malpractice trials because the jury is

not familiar with the intricacies of medicine. Standards established by medical specialty


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organizations, such as the American College of Obstetricians and Gynecologists, are often used

by these expert witnesses to address the alleged negligent actions of a physician who practices in

that specialty. Nonconformance to these standards is evidence of negligence, whereas

conformance supports a finding of due care.

Other rules govern the standard of care evaluation. A few states apply the "respectable minority

rule" in evaluating a physician's conduct. This rule holds that a physician is not negligent merely

by electing to pursue one of several recognized courses of treatment. Some states use the "error

in judgment rule." This principle exempts a physician from liability if the malpractice is based on

the physician's error in judgment in choosing among different methods of treatment or in

diagnosing a condition.

Medical malpractice litigation began to increase in the 1960s. Tort lawyers were able to break

the traditional "conspiracy of silence" that discouraged physicians from testifying about the

negligence of colleagues or serving as expert witnesses. By the 1970s physicians alleged that

malpractice claims were interfering with their medical practices, with insurance companies either

refusing to write malpractice policies for them or charging inflated premiums.

Over the years, physicians and health care providers argued that malpractice claims were also

driving up the cost of health care. They contended that jury verdicts in the millions of dollars had

to be passed on to the consumer in the form of higher insurance premiums and physician fees. In

addition, many physicians were forced to practice "defensive medicine" to guard against

malpractice claims. Defensive medicine refers to the conducting of additional tests and

procedures that are not medically necessary but that would assist in defeating a negligence claim.

In response to rising malpractice suits, many states pushed for "tort reform" measures. Such

measures limit the amount of damages a patient can recover for noneconomic losses, such as

pain and suffering, and Punitive Damages. For example, in 1975, California enacted the Medical

Injury Compensation Reform Act, which limits recovery of noneconomic damages at $250,000

and restricts the amount of fees that may be recovered by lawyers. Several other states adopted

similar measures based on the California model.


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The medical community, however, continued to fight for widespread tort reform among the

states, and at the national level. They cited insurance increases in the late 1990s and early 2000s,

which put further pressure on doctors' and hospitals' earningsearnings that had been shrinking

under Managed Care. Some areas of medicine were particularly hard hit. In New York and

Florida, for example, obstetricians, gynecologists, and surgeonsthe doctors who are sued the

most frequentlypay more than $100,000 a year for $1 million in coverage.

In 2003, President GEORGE W. BUSH addressed the medical community's concerns by

endorsing legislation that would place a $250,000 cap on noneconomic damages at the national

level. According to Bush, who spoke before an American Medical Association (AMA) advocacy

conference, "There are too many frivolous lawsuits against good doctors, and the patients are

paying the price." The president cited the fact that the federal government suffers losses of $28

million per year as a result of liability insurance and defensive medicine practices.

Critics who contest tort-reform laws argue that medical malpractice awards account for only one

percent of the total yearly National Health Careexpenditures. They also claim that such reforms

protect insurance companies and physicians, and not the patients. Trial attorneys point the finger

at the insurance companies. They claim that insurers keep prices artificially low while competing

for market share and new revenue. When the economy is sluggish and the market is slow, they

increase premiums because they are no longer able to use Stock Market gains to subsidize low

rates. Proponents of reform continue to maintain, however, that a federal cap will ultimately

result in lower medical costs and greater medical access for the general population.1

Some of the leading cases

As regards medical negligence, the legal position has been described in several leading

judgments. Some of these are given below:

1In the leading case Bolam v. Friern Hospital Management Committee [(1957) 2 All ER,

wherein judge Mc Nair J. has stated as follows:

1legal-dictionary.thefreedictionary.com


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".. where you get a situation which involves the use of some special skill or

competence, then the test whether there has been negligence or not is not the test of the man on

the top of a Clapham omnibus, because he has not got this 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 at the risk of being found negligent. It is well-established law that

it is sufficient if he exercise the ordinary skill of an ordinary competent man exercising that

particular art. Counsel for the plaintiff put it in this way, that in the case of a medical man,

negligence means failure to act in accordance with the standards of reasonably competent

medical men at the time. That is a perfectly accurate statement, as long as it is remembered that

there may be one or more perfectly proper standards; and if a medical man conforms with one of

those proper standards then he is not negligent. A doctor is not guilty of negligence if he has

acted in accordance with a practice accepted as proper by a responsible body of medical men

skilled in that particular art. Putting it the other way round, a doctor is not negligent, if he is

acting in accordance with such a practice, merely because there is a body of opinion that takes a

contrary view. At the same time, that does not mean that a medical man can obstinately and pig-

headedly carry on with some old technique if it has been proved to be contrary to what is really

substantially the whole of informed medical opinion."

2-- The Supreme Court in Laxman v. Trimbak AIR 1969 SC 128 , held:

"The duties which a doctor owes to his patient are clear. A person who holds himself out ready to

give medical advice and treatment impliedly undertakes that he is possessed of skill and

knowledge for the purpose. Such a person when consulted by a patient owes him certain duties

viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what

treatment to give or a duty of care in the administration of that treatment. A breach of any of

those duties gives a right of action for negligence to the patient. The practitioner must bring to

his task a reasonable degree of skill and knowledge and must exercise a

reasonable degree of care. Neither the very highest nor very low degree of care and competence

judged in the light of the particular circumstances of each case is what the law requires.

3In Achutrao Haribhau Khodwa v. State of Maharashtra [AIR 1996 SC 2377], the

Supreme Court said--


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"The skill of medical practitioners differs from doctor to doctor. The very nature of the

profession is such that there may be more than one course of treatment which may be advisable

for treating a patient. Courts would indeed be slow in attributing negligence on the part of a

doctor if he has performed his duties to the best of his ability and with due care and caution.

Medical opinion may differ with regard to the course of action to be taken by a doctor treating a

patient, but as long as a doctor acts in a manner which is acceptable to the medical profession

and the Court finds that he has attended on the patient with due care skill and diligence and if the

patient still does not survive or suffers a permanent ailment, it would be difficult to hold the

doctor to be guilty of negligence."

4In Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia & Anr., (1998) 4 SCC 39 at 47,

the Apex Court has specifically laid down the following principles for holding doctors negligent:

Gross medical mistake will always result in a finding of negligence. Use of wrong drug or

wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and

in some situations even the principle of res ipsa loquitur can be applied. Even delegation of

responsibility to another may amount to negligence in certain circumstances. A consultant could

be negligent where he delegates the responsibility to his junior with the knowledge that the

junior was incapable of performing of his duties properly. We are indicating these principles

since in the case in hand certain arguments had been advanced in this regard, which will be dealt

with while answering the questions posed by us.

5 In Poonam Verma Vs Ashwin Patel and Others, decided on 10.05.1996, the Supreme

Court observed as follows:

13. Negligence as a tort is the breach of a duty caused by omission to do something which a

reasonable man would do, or doing something which a prudent and reasonable man would not

do. (See : Blyth v. Birmingham Waterworks Co., (1856) 11 Exch 781 : Bridges v. Directors etc.

of N. L. Ry. (1873-74) HL 213 : Governor-General in Council v.

Mt. Saliman, (1949) ILR 27 Pat 207 : (AIR 1949 Patna 388); Winfield and Jolowicz on Tort).2

14. The definition involves the following constituents :-

21996 AIR 2111 As cited by http://indiankanoon.org/doc/611474/


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(1) a legal duty to exercise due care;

(2) breach of the duty; and

(3) consequently damages.

15. The breach of duty may be occasioned either by not doing something which a reasonable

man, under a given set of circumstances would do, or, by doing some act which a reasonable

prudent man would not do.

16. So far as persons engaged in Medical Profession are concerned, it may be stated that every

person who enters into the profession, undertakes to bring to the exercise of it, a reasonable

degree of care and skill. It is true that a Doctor or a Surgeon does not undertake that he will

positively cure a patient nor does he undertake to use the highest possible degree or skill, as there

may be person more learned and skilled than himself, but he definitely undertakes to use a fair,

reasonable and competent degree of skill. This implied undertaking constitutes the real test,

which will also be clear from a study and analysis of the judgment in Bolam v. Friern Hospital

Management Committee (1957) 2 All ER 118, in which, McNair, J., while addressing the jury

summed up the law as under :

"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; it is well established law that it is

sufficient if he exercises the ordinary skill of an ordinary competent man exercising that

particular art. In the case of a medical man, negligence means failure to act in accordance with

the standards of reasonably competent medical men at the time. There may be one or more

perfectly proper standards, and if he conforms with one of these proper standards, then he is not

negligent".

17. This decision has since been approved by the House of Lords in Whitehouse v. Jordan,

(1981) 1 All ER 267 (HL); Maynard v. West Midlands Regional Health Authority, (1985) 1 All

ER 635 (HL); Sidaway v. Gethlem Royal Hospital, (1985) 1 All ER 643 (HL); Chin Keow v.

Govt. of Malaysia, (1967) 1 WLR 813 (PC).


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18. The test pointed out by McNair, J. covers the liability of a Doctor in respect of his diagnosis,

his liability to warn the patients of the risk inherent in the treatment and his liability in respect of

the treatment.

19. This Court in Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC

128, laid down that a Doctor when consulted by a patient owes him certain

duties, namely, (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in

deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A

breach of any of these duties gives a cause of action for negligence to the patient.

20. The principles were reiterated in A.S. Mittal v. State of U.P., AIR 1989 SC 1570, in which

wide extracts from that judgment were made and approved.

40. Negligence has many manifestations - it may be active negligence, collateral negligence,

comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross

negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or

negligence per se, which is defined in Black's Law Dictionary as under :

Negligence per se: Conduct, whether of action or omission, which may be declared and treated

as negligence without any argument or proof as to the particular surrounding circumstances,

either because it is in violation of a statute or valid municipal ordinance, or because it is so

palpably opposed to the dictates of common prudence that it can be said without hesitation or

doubt that no careful person would have been guilty of it. As a general rule, the violation of a

public duty, enjoined by law for the protection of person or property, so constitutes".3

6-- In Jacob Mathew Vs. State of Punjab (2005)6 SCC 1, while dealing with the tests to be

kept in mind by the courts in dealing with cases of medical negligence, the Honble Supreme

Court observed as follows:

3www.pathoindia.com


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So long as it can be found that the procedure which was in fact adopted was one which was

acceptable to medical science as on that date, the medical practitioner cannot be held negligent

merely because he chose to follow one procedure and not another and the result was a failure.

Indiscriminate prosecution of medical professionals for criminal negligence is counter-

productive and does no service or good to the society.

Conclusions summed up :

We sum up our conclusions as under:-

(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 besufficient; 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


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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, 586 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


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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. In view of the principles laid down

hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr.

Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify

that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh

Gupta's case. We may not be understood as having expressed any opinion on the question

whether on the facts of that case the accused could or could not have been held guilty of criminal

negligence as that question is not before us. We also approve of the passage from Errors,

Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with

approval in Dr. Suresh Gupta's case (noted vide para 27 of the report). Guidelines re: prosecuting

medical professionals As we have noticed hereinabove that the cases of doctors (surgeons and

physicians) being subjected to criminal prosecution are on an increase. Sometimes such

prosecutions are filed by private complainants and sometimes by police on an FIR being lodged

and cognizance taken. The investigating officer and the private complainant cannot always be

supposed to have knowledge of medical science so as to determine whether the act of the

accused medical professional amounts to rash or negligent act within the domain of criminal law

under Section 304-A of IPC. The criminal process once initiated subjects the medical

professional to serious embarrassment and sometimes harassment. He has to seek bail to

escape arrest, which may or may not be granted to him. At the end he may be exonerated by

acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated

by any standards.

We may not be understood as holding that doctors can never be prosecuted for an offence of

which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the

need for care and caution in the interest of society; for, the service which the medical profession

renders to human beings is probably the noblest of all, and hence there is a need for protecting

doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal

process as a tool for pressurizing the medical professional for extracting uncalled for or unjust

compensation. Such malicious proceedings have to be guarded against. Statutory Rules or


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Executive Instructions incorporating certain guidelines need to be framed and issued by the

Government of India and/or the State Governments in consultation with the Medical Council of

India. So long as it is not done, we propose to lay down certain guidelines for the future which

should govern the prosecution of doctors for offences of which criminal rashness or criminal

negligence is an ingredient. 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 test to the

facts collected in the investigation. A doctor accused of rashness or negligence, may not be

arrested in a routine manner (simply because a charge has been levelled 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.

7In Dr.Kunal Saha v. Dr. Sukumar Mukherjee and Ors., decided on 1st June, 2006 , the

National Consumer Commission summarised the medical negligence law as follows:

Real test for determining deficiency in service

Well laid down tests for determining deficiency in service are - whether there is failure to act in

accordance with standard of a reasonable competent medical practitioner?

(i). Whether there was exercise of reasonable degree of care?

(ii). The degree of standard or reasonable care varies in each case depending upon expertise of

medical man and the circumstances of each case. On this aspect, it would be worthwhile to referto the enunciation from Halsburys Laws of England.

With regard to degree of skill and care required by the doctors, it has been stated as under in

(pr.36, p.36, Vol.30, Halsburys Laws of England, 4th Edn.)


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The practitioner must bring to his task a reasonabledegree of skill and knowledge, and must

exercise a reasonable degree of care. Failure to use due skill in diagnosis with the result that

wrong treatment is given is negligence. Neither the very highest nor a very low degree of care

and

competence, judged in the light of the particular circumstances of each case, is what the law

requires, and a person is not liable in negligence because someone else of greater skill and

knowledge would have prescribed different treatment or operated in a different way; nor is he

guilty of negligence if he has acted in accordance with a practice accepted as proper by a

responsible body of medical men skilled in that particular art, even though a body of adverse

opinion also exists among medical men; nor is a practitioner necessarily negligent if he has acted

in accordance with one responsible body of medical opinion in preference to another in relation

to the diagnosis and treatment of a certain condition, provided that the practice of that body of

medical opinion is reasonable.

The Apex Court aptly stated the said principles further in Dr.Laxman Balakrishna Joshi Vs.

Dr.Trimbak Bapu Godbole, AIR 1969 SC 128, which reads as under:

The practitioner must bring to his task a reasonable degree of skill and knowledge and must

exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and

competence judged in the light of the particular circumstances of each case is what the law

requires: (cf. Halsburys Laws of England, 3rd ed. Vol. 26 p.17). The doctor no doubt has

discretion in choosing treatment which he proposes to give to the patient and such discretion is

relatively ampler in cases of emergency.

Similarly in Poonam Verma Vs. Ashwin Patel (1996) 4 SCC 332, dealing with medical

negligence, the Court observed that:

14. Negligence as a tort is the breach of a duty caused by omission to do something which areasonable man would do, or doing something which a prudent and reasonable man would not

do.

15. The definition involves the following constituents:

(1) a legal duty to exercise due care;


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(2) breach of the duty; and

(3) consequential damages.

16. The breach of duty may be occasioned either by not doing something which a reasonable

man, under a given set of circumstances would do, or, by doing some act which a reasonable

prudent man would not do.

17. So far as persons engaged in the medical profession are concerned, it may be stated that

every person who enters into the profession, undertakes to bring to the exercise of it, a

reasonable degree of care and skill. It is true that a doctor or a surgeon does not undertake that he

will positively cure a patient nor does he undertake to use the highest possible degree of skill, as

there may be persons more learned and skilled than himself, but he definitely undertakes to use a

fair, reasonable and competent degree of skill. This implied undertaking constitutes the real test,

which will also be clear from a study and analysis of the judgment in Bolam v. Friern Hospital

Management Committee5 in which, McNair, J., while addressing the jury summed up the law as

under:

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 at the risk of being found negligent.

It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary

competent man exercising that particular art. I do not think that I quarrel much with any of the

submissions in law which have been put before you by counsel. Counsel for the plaintiff put it in

this way, that in the case of a medical man, negligence means failure to act in accordance with

the standards of reasonably competent medical men at the time. That is a perfectly accurate

statement, as long as it is remembered that there may be one or more perfectly proper standards;

and if a medical man conforms with one of those proper standards then he is not negligent.

18. This decision has since been approved by the House of Lords in Whitehouse v. Jordan;Maynard v. West Midlands Regional Health Authority; Sidaway v. Bethlem Royal Hospital;

Chin Keow v. Govt. of Malaysia.


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19. The test pointed out by McNair, J. covers the liability of a doctor in respect of his diagnosis,

his liability to warn the patients of the risk inherent in the treatment and his liability in respect of

the treatment.

If there are alternative procedures of treatment and if a Doctor adopts one of them and conducts

the same with due care and caution then no negligence can be attributed towards him. In

substance, for establishing negligence or deficiency in service there must be sufficient evidence

that a Doctor or a hospital has not taken reasonable care while treating the patient. Reasonable

care in discharge of duties by the hospital and Doctors varies from case to case and expertise

expected on the subject which a Doctor of a hospital has undertaken. Courts would be slow in

attributing negligence on the part of the Doctor if he has performed his duties to the best of his

ability with due care and caution.

It has been held in Dr. Anita Prashar Vs. Preeti Kochar and Anr. III (2005) CPJ 638, and also in

Honble Supreme Court case in the case of Achutrao (1996) 2 SCC 634 that there are various

mode and course of treatment and if a Doctor adopts one of them with due care and caution the

Court could indeed be slow in attributing negligence on the part of a Doctor if he has performed

his duties to the best of his ability and with due care and caution.

Same view is expressed in Achutrao Haribhau Khodwa and Ors. Vs. State of Maharashtra

& Ors.

(1996) 2 SCC 634, wherein the Court observed:

14. The skill of medical practitioners differs from doctor to doctor. The very nature of the

profession is such that there may be more than one course of treatment which may be advisable

for treating a patient. Courts would indeed be slow in attributing negligence on the part of a

doctor if he has performed his duties to the best of his ability and with due care and caution.

Medical opinion may differ with regard to the course of action to be taken by a doctor treating a

patient, but as long as a doctor acts in a manner which is acceptable to the medical profession

and the court finds that he has attended on the patient with due care, skill and diligence and if the

patient still does not survive or suffers a permanent ailment, it would be difficult to hold the

doctor to be guilty of negligence.


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As per the settled law discussed above, deficiency in medical negligence is to be judged on the

following principles:

(i). It is to be remembered that a Doctor or a Surgeon does not undertake that he will positively

cure a patient nor does he undertake to use the highest possible degree of skill, as there may be

persons more learned and skilled than himself, but he definitely undertakes to use a fair,

reasonable and competent degree of skill.4

(ii). It is to be stated that if there are several modes of treatment and if a Doctor adopts one of

them and conducts the same with due care and caution then no negligence can be attributed

towards him;

(iii). Secondly, in the case of medical man, negligence means, failure to act in accordance with

the standards of reasonably competent medical men at the time.

(iv). A medical practitioner is expected to exercise a reasonable degree of care and exercise skill

and knowledge which he possess;

(v). No doubt, failure to use due skill in diagnosis with the result that wrong treatment is given is

negligence;

(vi). Medical opinion may differ with regard to diagnosis or treatment, but in a complicated case

if they occur and Court will be slow in attributing negligence on the part of the Doctor if he has

performed his duties to the best of his ability and with due care and caution.

8--In --Kalyani Dutta v. Tirath Ram hosp., decided 3-3-08, the Delhi State Consumer

Commission held as follows:

7. However, the definition of deficiency provided by Sec. 2(1)(g) of the Consumer Protection

Act, 1986 is so wide that it also takes in its fold the administrative deficiencies of the hospital.

For instance, not providing blood to a patient who could die if blood transfusion is delayed for

some time or not providing oxygen cylinder for want of which the patient is likely to suffer,

some time fatal, or admitting the patient in the Nursing Home or hospital knowing it well that the

doctors who are specialized and skilled for treating the patient are not available for some reason

4www.wikipedia.org


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or the other. Sometimes, sanitary conditions of the hospital are so bad that it contributes to the

worsening condition of the patient. Sometimes, the wherewithal and paraphernalia of the hospital

who have very high reputation and claims themselves to be a five star or seven star hospital are

not adequate.

8. Similarly any negligence in not attending to the patients in ICU who are ordinarily not allowed

any attendant amounts to negligence. Utmost care and round the clock attendance is required for

the patients in ICU. Nomenclature ICU itself suggests that core should be of intensive nature.

Any shortcoming, imperfection or inadequacy in the quality, nature and manner of performance

which is required to be maintained by or under any law for the time being in force or has been

undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any

service.

9. In such like cases we have taken a view that the hospital alone can be held guilty for

deficiency in service in not taking proper care of the patient and once a patient is admitted in the

in the hospital/ICU it becomes their first and foremost duty to provide each and every help to the

patient depending upon the nature of disease and give proper attendance for preventing any fall

from the bed as has happened in the instant case or any other eventuality causing any physical

damage to the patient etc. Recently we have come across and decided few cases of patients

having fallen from the bed in ICU suffering fractures particularly old and heart patients and even

resulting in death.

10. However, in this case the OP had taken the plea that patient was suffering from such disease

that developed psychosis and broke the fence of the barrier attached to the bed and had a fall.

This itself shows that there was no person to attend to the patient and that too in the ICU and this

amounts to administrative deficiency.5

Defenses

As malpractice is a form of negligence, many of the defenses allowed against general negligence

claims are also viable against claims of malpractice. For example, a doctor may argue that his

care was in line with the standards upheld in the medical profession, or that the patients injuries

5www.pathoindia.com


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werent the result of a medical error. While disproving an element of negligence is one of the

most common defenses to medical malpractice, there are a number of other defenses that may

apply.

Contributory Negligence

Oftentimes, medical professionals arent the only ones to blame for an injury. If the defendant

can show that the injury would not have occurred had it not been for a negligent act by the

patient, he or she may have a valid defense against a malpractice claim. For example, if a patient

mixed prescriptions against the doctors orders or failed to disclose key elements of his or her

medical history, the doctor may be off the hook for any injuries that result.

Respectable Minority Principle

Sometimes medical professionals decide to pursue a new or more radical form of treatment in

order to effectively treat a patient. While the decision may place the doctor outside of the

medical mainstream, he or she could have a valid defense to a medical malpractice claim if a

respectable minority of medical professionals supports the line of treatment. Of course, the

doctor must first inform the patient about the risks involved.

Good Samaritan Laws

Many states have Good Samaritan laws, shielding individuals who come to the a id of those in

medical distress. Doctors, nurses, and other medical professionals are often specifically included

in such laws. That means if a doctor aids someone in an emergency situation, he or she will be

protected from civil liability should anything go wrong during the rescue.

Statute of Limitations

State laws place time limits on when an action can be brought for medical malpractice. Some

states have adopted the discovery rule, which holds that the statute of limitations period

doesnt begin until an injury is actually discovered. If the defendant can show that the plaintiff


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discovered the injury at a certain point and that the statute of limitations has since run, he or she

may be able to get the case dismissed.6

Remedy

A consumer has the option to approach the Consumer Forums to seek speedy redressal of his

grievances or file a criminal complaint.

If you feel like you are not getting the proper medical treatment though you are spending a lot of

money, at the end of the day you would want one thing i.e., justice. You would want your money

back, may be you would like to get compensation for deterioration of your health and

harassment.

But you are not allowed to charge him criminally for your dissatisfaction of the service rendered.

As per the Indian Courts it will be total injustice to the medical practitioners to criminally charge

them for their mistakes which may lead to a dire consequence, for example even death of a

patient. It is so because human beings commit mistakes and though we treat the doctors as God,

they are mere human beings.

In India the doctor- patient relationship is considered to be a very special and delicate kind of

service provider- customer relationship where the doctor has the final say regarding the delivery

of service as a customary practice. The Supreme Court hasheld that medical practitioners,

government hospitals, private hospitals and nursing homes are covered under consumer law if

its not a charitable medical clinic where services are rendered free of charge to everybody

availing of the said service (Indian Medical Association v. V. P. Shantha). So as a consumer if

you are unsatisfied you can go to a consumer court under the Consumer Protection Act, 1986.

The relationship between such a consumer and a service provider is very delicate as it is built on

the foundation of trust. The patient trusts the doctor with his life and the doctor has the duty to

ensure best interest of the patient. Unlike in America where the relationship is based on the

doctrine of informed consent (See more about informed consent in India, informed consent in

other jurisdictions), here the Indian doctors always take the decision of the process of the

6injury.findlaw.com


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treatment and generally the patient has no say in the decision making process. So basically if

something goes wrong with the treatment then the doctors are responsible.

Broadly speaking, doctors can be held responsible under:

a) Consumer Protection Act, 1986

b) Civil negligence, or tort

c) Criminal negligence

Remedy under Consumer Protection Act:

At present the best remedy a patient can get is through a consumer forum petition. By treating

medical profession as a service under the Consumer Protection Act it is now easier to get remedy

for a negligent act of a doctor, which is timely and inexpensive, when compared to filing a civil

or criminal suit or a writ petition. This is a very welcome development, as it ensures a remedy to

aggrieved parties within 150 days from the file of complaint.

Remedy under Tort law:

Remedy is also available in tort law. Like all negligence claims under tort law, it requires the

satisfaction of three criteria a duty of care, a breach of duty and damages. However, in the

specific context of the medical profession, the components duty of care and standard of care are

assessed as per the professional standards of the medical community. Furthermore, it has to be

taken into account that the medical science is an imprecise science, and it is next to impossible to

be completely error free. In addition, there are frequently more than one available options of

treatment, with medical practitioners having individual preferences. Therefore, it is not possible

to single out a single stringent set of reasonable course of treatment or degree of care.

A doctor will not be held liable for professional negligence he follows a practice accepted to be

proper by a responsible body of medical opinion, even if there is another body of medical experts

holds a different view regarding that treatment or process.


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Since such matters require determination of facts which are highly technical, a judge cannot rely

upon his own layman logic or reasonableness; instead, he has to rely upon an expert opinion.

However, a judge is permitted to choose between two conflicting expert opinions and can reject

one of those opinions if it is not logically defensible.

These principles were laid down in two English cases Bolam v. Friem Hospital Management

Committee, 1957 & Bolitho v. City and Hackney Health Authority, 1998).

Criminal Negligence: A matter beyond mere compensation

Criminal negligence matters are dealt under Ss 337(hurt), 338(grievous hurt) and 304A(culpable

homicide not amounting to murder) of the Indian Penal Code. In order to prosecute a medical

practitioner one has to prove malicious intention or gross negligence i.e., a high degree of

negligent conduct. Moreover to start a criminal proceeding against a medical practitioner there

has to be a prima facie evidence in the form of a credible opinion from a competent doctor,

preferably a government doctor in the same field of medicine supporting the charges of rash and

negligent act. The liability of a doctor always depends on the circumstances of a particular case.

A mere lack of necessary care, attention or skill cannot be a good enough reason to prosecute a

doctor as those will not constitutegross negligence. In English law this gross negligence has been

defined as to show such disregard for life and the safety of others as to amount to a crime against

the state and conduct deserving of punishment (R v. Bateman, 1925). The use of medical science

is not error free and there are varieties of treatment method favored by various practitioners so it

is not possible to set a stringent set of reasonable process of treatment or degree of care. Risk of

failure is always there and we cannot take the benefit without taking any risk.

So something more than a mere negligence has to be proved in order to prosecute a doctor. In

order to establish criminal negligence in diagnosis or treatment on the part of the doctors he has

to be proved guilty of such failure as no doctor of ordinary skill would have been guilty of, if he

was acting with reasonable care. It is a matter beyond mere compensation. It involves an utter


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disregard to the life and safety of others and a conduct deserving of punishment where the degree

of negligence is much higher than that of a civil negligence case.

Immunity available to the Doctors:

1. Doctors cannot be prosecuted without prima facie evidence in the form of a credible

opinion from a competent doctor, preferably a government doctor in the same field of medicine

supporting the charges of rash and negligent act.

2. Cannot be arrested in a routine manner

3. Cannot be arrested unless his arrest is necessary for-

Furthering the investigation

Collection of evidence

Producing him in front of the court to face the prosecution (In satisfaction of

investigating officer only)7

Essentials to be fulfilled by the plaintiff

Retain prescription, bills and references.

Maintain medical history records. Consent given by the patient or close relative can be used as evidence in the court.8

Bibliography

Books referred

BANGIA, R.K. , LAW OF TORTS , ALLAHABAD LAW AGENCY, FARIDABAD,

2006. RATANLAL, RANCHHODDAS, THAKORE , DHIRAJLAL, SINGH , G.P,THE

LAW OF TORTS, LEXISNEXIS BUTTERWORTHS WADHWA

NAGPUR,GURGAON,2011.

7http://blog.medicallaw.in

8www.advocatekhoj.com
http://blog.medicallaw.in/http://blog.medicallaw.in/http://blog.medicallaw.in/http://blog.medicallaw.in/


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Web sources referred

legal-dictionary.thefreedictionary.com

www.pathoindia.com

www.wikipedia.org

injury.findlaw.com

http://blog.medicallaw.in

www.advocatekhoj.com
http://www.pathoindia.com/http://www.pathoindia.com/http://www.wikipedia.org/http://www.wikipedia.org/http://blog.medicallaw.in/http://blog.medicallaw.in/http://blog.medicallaw.in/http://www.wikipedia.org/http://www.pathoindia.com/

consequential damages in negligience

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