Hon'ble Supreme Court in matter 'Vinod Jain Vs. Santokba Durlabhji Memorial Hospital and Ors. has recently upheld the Order passed by the National Consumer Disputes Redressal Commission ("NCDRC") exonerating the respondents i.e the hospital and treating doctor from any medical negligence.
While we have come upon numerous judgments wherein the Apex Court has held the hospitals or treating doctors liable for the medical negligence and additionally directed for payment of heavy compensations to the complainants. The Apex Court in this judgment has reiterated the vital legal principles in order to identify negligence on part of a skilled medical practitioner. The Apex Court has also cited various judgments determining the fundamental aspect required in a medical negligence case.
Beginning with the basic differences between a civil and criminal negligence, I would culminate this short article with the varied principles and the quandary of proving negligence on part of any medical practitioner or establishment.
Civil and Criminal Negligence:
Under Civil law, a case for Medical Negligence may be initiated under Consumer Protection Act or by means of filing a suit in a civil court against a private medical institution or a practitioner who are not providing medical care free of charges.
Under Criminal Negligence, Section 304A of the IPC, 1860 states that whoever causes the death of an individual by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both. In Santra Case, the Supreme Court had pointed out that liability in civil law rests on the amount of damages incurred, in criminal law, the amount and degree of negligence is a factor in determining liability. However, certain elements must be established to determine criminal liability in any particular case, the motive and magnitude of the offence and the character of the offender. As per the Halsbury's Laws of England, that has also been extracted in the case "Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Center and Ors." "Deficiency in medical service" is duty owed to patient. A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case: a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient.
In a judgment of its own kind the Apex Court emphasized on the skill and degree of care and caution required by a professional practitioner. It was held that 'any individual approaching such a skilled person would have a reasonable expectation of a degree of care and caution, however there could be no assurance of the result. A physician thus would not assure a full recovery in every case, and the only assurance given by implication, is that he possesses the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills with reasonable competence. Thus, a liability would only come, if (a) either the person (doctor) did not possess the requisite skills, which he professed to have possessed; or (b) he did not exercise, with reasonable competence in a given case, the skill which he did possess. It was held not to be necessary for every professional to possess the highest level of expertise in that branch in which he practices.
The vital tests reiterated by Apex Court in present case that was also laid down in Kusum Sharma and Ors. Vs. Batra Hospital & Medical Research are as follows-
- Negligence is the breach of a duty exercised 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.
- Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
- The medical professional is expected to bring 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.
- A medical practitioner would be liable only where his conduct fell below that of the standard so far reasonably competent practitioner in his field.
- In the realm of diagnosis and treatment, there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
- The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
- Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor choses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
- It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
- It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
- The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
- The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
In the present case the NCDRC opined that the case could be categorized as a case of wrong diagnosis rather than a case of medical negligence. Hon'ble Supreme Court observing the decision to be right said that such a course of action as a super-appellate medical authority could not have been performed by the State Commission. There was no evidence to indicate any unexplained deviation from the standard protocol. It is also relevant to note that the deceased was medically compromised by the reason of her past illness.
The legal principles listed down by the Apex Court canvass the performance of duties by the medical professional with reasonable skill. The parameter of determining the reasonable skill seems to be a bit obscure since the there is no straight jacket formula to rule out the negligence committed by any medical professional. The Courts in order to find out the best possible outcome follow open ended principles that cannot merely determine the precise result however only facilitate in finding out near possible outcome since it is not possible for Court to find out the exact diagnosis or treatment that a skilled professional would choose to administer to its patient depending on the condition of the disease/patients. A case of wrong diagnosis would still forestall a medical professional from being punished for negligence since there are no evidences to prove the medical negligence committed by skilled medical professional. This clearly reflects the indeterminate vision and a rough concept that any court could employ in order to rule out a medical negligence. Even a victim of medical negligence would face the hardship in collecting evidences against a medical professional from the institute where he regularly practices his profession until it is a transparent case of medical negligence. Hence, the standard principles would possibly sometimes succour the Courts in ruling out genuine cases however it may sometimes simply baffle the Courts and drift the balance of convenience towards the medical professional.
 State of Haryana and Ors. vs. Santra (24.04.2000 - SC) : MANU/SC/0295/2000
 Ed.4 Vol.26 pages 17-18
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