What is negligence
“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.” (para 5.1, j7)
Negligence by professionals
“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.” (para 5.3, page j7)
Negligence – Level of expertise
“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.” (para 5.3, page j7)
Negligence – Precautions taken by doctors
“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 be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.” (para 5.2, page j7)
What is not negligence
“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.” (para 5.2, page j7)
Medical mishaps
“A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional.” (para 5.2, page j7)
“Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence.” (para 6, page j7)
“… this Court has indicated the caution needed in approaching a case of medical negligence having regard to the complexity of the human body which is subjected to treatment and the uncertainty involved in medical procedures. A doctor, in essence, needs to be inventive and has to take snap decisions especially in the course of performing surgery when some unexpected problems crop up or complication sets in.” (para 31, page j13)
Legal presumption in favor of doctors – Doctors guarantee care and not results
“Where a doctor contracted to carry out a particular operation on a patient and a particular result was expected, the court would imply into the contract between the doctor and the patient a term that the operation would be carried out with reasonable care and skill, but would be slow to imply a term or unqualified collateral warranty that the expected result would actually be achieved, since it was probable that no responsible medical man would intend to give such a warranty.” (para 17.2, page j11)
“… in the absence of any express warranty, the court should be slow to imply against a medical man an unqualified warranty as to the results of an intended operation, for the very simple reason that, objectively speaking, it is most unlikely that a responsible medical man would intend to give a warranty of this nature. Of course, objectively speaking, it is likely that he would give a guarantee that he would do what he had undertaken to do with reasonable care and skill…” (para 19, page j11)
“In my view, a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms.” (para 22, page j12)
Need for self-regulation amongst doctors
“Inherent in the concept of any profession is a code of conduct, containing the basic ethics that underline the moral values that govern professional practice and is aimed at upholding its dignity. Medical Ethics underpins the values at the heart of the practitioner-client relationship. In the recent times, professionals are developing a tendency to forget that the self-regulation which is at the heart of their profession is a privilege and not a right and a profession obtains this privilege in return for an implicit contract with society to provide good, competent and accountable service to the public.” (para 32, page j14)
Ethics and doctors
“Medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient.” (para 33, page j14)
“The medical profession is and always has been one of the most ethical of all professions.” (para 35, page j15)
Recent disturbing trends amongst doctors
“In recent times the self regulatory standards in the profession have shown a decline and this can be attributed to the overwhelming impact of commercialization of the sector. There are reports against doctors of exploitative medical practices, misuse of diagnostic procedures, brokering deals for sale of human organs, etc. It cannot be denied that black sheep have entered the profession and that the profession has been unable to isolate them effectively. The need for external regulation to supplement professional self-regulation is constantly growing. The high costs and investments involved in the delivery of medical care have made it an entrepreneurial activity wherein the professionals look to reaping maximum returns on such investment. Medical practice has always had a place of honour in society; currently the balance between service and business is shifting disturbingly towards business and this calls for improved and effective regulation, whether internal or external. There is need for introspection by doctors - individually and collectively. They must rise to the occasion and enforce discipline and high standards in the profession by assuming an active role.” (para 38, page j15)
Welfare fund or insurance scheme for failed sterilization – Advice to State Governments
“State Governments should think of devising and making provisions for a welfare fund or taking up with the insurance companies, a proposal for devising an appropriate insurance policy or an insurance scheme, which would provide coverage for such claims where a child is born to woman who has undergone a successful sterilization operation.” (para 39, page j16)
Editor’s comment
It is advisable that all doctor-subscribers must read the judgment of State of Punjab v/s Shiv Ram & Ors (page j6) at least once. This judgment is recent, deals briefly with important judgments on medical laws, and summarises important aspects of the law relating to medical practice. The language also is not very technical and easy to comprehend. This judgment reiterates the legal position - Indian laws favor doctors and should therefore ease anxiety of doctors in India and enhance their confidence.