In the background of the Union government’s proposal to frame guidelines for medical negligence in India, the Supreme Court of India, in its recent judgment in the matter of M.A. Bivji versus Sunita and Others, reiterates that for a medical practitioner to be liable for medical negligence a higher threshold is required.
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THE Supreme Court of India has recently reiterated the contours of medical negligence—which it has identified over the years— in M.A. Bivji versus Sunita and Others.
The law on ‘medical negligence’
While the judiciary has been mindful of the discretion exercised by medical professionals, the court has also been cognisant of the occasional conflict between this discretion and the rights of the customer.
Though the term medical negligence has not been defined under any statute in the Indian legal framework, in common parlance it can be defined to include acts which are an aberration from the regular practice adopted by medical professionals in their field, leading to some harm to the patient.
Criminal consequences of medical negligence are governed by Section 304A of the Indian Penal Code (IPC) which states, “Whoever causes death of any person by doing any rash or negligent act amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
Though the term medical negligence has not been defined under any statute in the Indian legal framework, in common parlance it can be defined to include acts which are an aberration from the regular practice adopted by medical professionals in their field, leading to some harm to the patient.
The IPC itself provides for certain exemptions to the rule of culpability, for instance under Section 92, acts done in good faith or for the person’s benefit without consent though the act causes harm to the person and the person has not consented to suffer such harm.
Further, under Section 93 certain communications which have been made in good faith are considered to be outside the purview of criminality. Therefore, to impute criminal liability on a medical practitioner, the act committed by them should be either rash or negligent, meaning something not done with ordinary due care and procedure.
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The Supreme Court of India, in the leading case of Jacob Mathew versus State of Punjab and Others, laid down the standards for governing medical negligence.
It was stated that ‘negligence’ in ordinary parlance means breach of duty owed to someone resulting in damage which in case of medical practitioners differs and should be assessed based on the knowledge available at the time of the occurrence.
That is to say, the standard would be one which an ordinary competent person exercising ordinary skills in that profession should possess for it is not possible for every medical practitioner to have the highest skills or expertise.
The existence of mens rea or guilty intention was also stressed upon in the case for an occurrence to constitute medical negligence.
This considerably liberal stand adopted by the Indian judiciary has been reiterated time and again. In the case of Kusum Sharma and Others versus Batra Hospital and Medical Research Centre and Others, while defining and laying down the standards of medical negligence, the court stated that the doctor must have a reasonable degree of skill and knowledge and should exercise care of a reasonable degree neither highest nor very low and a doctor would be liable only when the conduct falls below that of a reasonably competent doctor.
In the case of Chanda Rani Akhouri and Others versus M.A. Methusethupathi and Others, the court held that a doctor cannot be held accountable for medical negligence when a doctor, using all due care, opted for one method over another which would also qualify as the reasonable course of treatment.
Similarly, in the case of Bombay Hospital and Medical Research Centre versus Asha Jaiswal and Others, wherein by choosing an alternative method the patient developed complications, the court held that without sufficient and conclusive evidence to impute liability on the doctor, any subsequent liability cannot be fastened upon the medical practitioner.
Further, in the case of Samira Kohli versus Dr Prabha Manchanda and Another, the court held that a doctor, when acting with normal care and in consonance with recognised practice, was accepted in the field of medicine.
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Reliance can also be placed on the case of C.P. Sreekumar versus S. Ramanujam, where the court held that choosing a conservative method of treatment will not by itself qualify as medical negligence as long as the method of treatment was not palpably wrong.
M.A. Bivji judgment
A Bench comprising Justice Hrishikesh Roy and Justice Manoj Misra dealt with a complaint against a hospital on account of unjustifiable and forceful performance of nasotracheal intubation procedure.
After discussing the procedure in-depth and analysing the facts of the case, the court stated that medical negligence has three essential ingredients, namely duty of care being extended to the patient, breach of such duty of care and resulting damage or injury caused to the patient due to the negligent act of the medical practitioner.
The court further noted that: “Due to the unique circumstances and complications that arise in different individual cases, coupled with the constant advancement in the medical field and its practices, it is natural that there shall always be different opinions, including contesting views regarding the chosen line of treatment, or the course of action to be undertaken.
“In such circumstances, just because a doctor opts for a particular line of treatment but does not achieve the desired result, they cannot be held liable for negligence, provided that the said course of action undertaken was recognised as sound and relevant medical practice.
The Supreme Court of India, in the leading case of Jacob Mathew versus State of Punjab and Others, laid down the standards for governing medical negligence.
“This may include a procedure entailing a higher risk element as well, which was opted for after due consideration and deliberation by the doctor. Therefore, a line of treatment undertaken should not be of a discarded or obsolete category in any circumstance.”
What needs to be specifically noted in the court’s pronouncement is the fact that it emphasised on the need of producing specific evidence to impute liability of the medical practitioner.
Conclusion
It can be seen from the above discussion that the Indian judiciary has been quite unanimous in its stand while dealing with cases of medical negligence.
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The judiciary has taken a line that considers the medical profession to be a noble one, gives medical science a long lease for being an inexact science, and is understanding of the extreme pressure under which medical professionals work, where they cannot be expected to follow the utmost standards of care and diligence.
However, what the judiciary has time and again missed is the fact that if medical science is an inexact science, there is a lot of scope of it being manipulated in a way that is not in line with the nobility attached to the profession.
A study by Harvard University revealed that a staggering 5,000,000 deaths in India annually happen owing to medical negligence. Such a number is supported by perennial newspaper reports wherein deaths are reported owing to medical errors.
The protection granted by the Indian judiciary is absolutely needed for any professional to undertake their tasks with no fear of litigation and criminal consequences. But in the existing atmosphere, the need for superior medical training, especially in rural areas, is vital.
In M.A. Bivji Bench comprising Justice Hrishikesh Roy and Justice Manoj Misra dealt with a complaint against a hospital on account of unjustifiable and forceful performance of nasotracheal intubation procedure.
Further, such wide and abstract guidelines by the judiciary cause more harm than good.
While it gives a freeway to one party, it might lead to multiple irreversible consequences for many. In absence of clear and defined guidelines for dealing with cases of medical negligence, what further mounts pressure on the victims is that even the judicial route is not the most preferred one for most of them.
There is delay in handling of cases and considering the enormous judicial backlog, getting a remedy becomes a far-fetched dream for many.
To summarise, while on paper the rights being granted to medical practitioners seem to be completely in line with the requirements of their profession, if one is to go by the recent trend of deaths in India caused due to medical negligence, the protection seems a little skewed.
While on paper the rights being granted to medical practitioners seem to be completely in line with the requirements of their profession, if one is to go by the recent trend of deaths in India caused due to medical negligence, the protection seems a little skewed.
What is needed now is fair and transparent guidelines which will provide a fair playground to both the practitioners and the patients supported with forums which specialise in medical negligence cases on the lines of the ones that exist for company law, environmental law, etc.
