The Medical Profession is one of the most revered streams of work in society. The duty of a doctor is considered highly prestigious as they are in a position to save millions from death. It can be observed from the recent situations that the profession exercised by doctors is of utmost importance. The medical profession and the various modes of treatment are not always predictable. Death occurs due to various reasons in the course of treatment. In most cases, doctors are blamed for negligence whatever may be the cause of death, as the treatment is carried out by them. Most complications that occur in the patient unknowingly or unexpectedly that result in the death of the patient, are blamed upon the doctors. Nowadays doctors are placed in a very vulnerable position and are often brought into the trial before the court to face the action of medical negligence.
Dealing with the case of medical negligence is not always easy for a doctor. Mostly, they lose their reputation and the guilt of negligence is carried throughout their profession. The legal aspects of duty of care and utmost cautiousness heightens the burden of a medical professional. Doctors are often directed to compensate wholesome money to the patient wherein the act of negligence is proven. Moreover, as observed recently many doctors are assaulted and lynched assuming that they caused the death knowingly. The legal system has introduced clear guidelines as to how a doctor should exercise precautions and act utmost professionally to save people and to not fall into the pits of negligence.
In this paper, various complications which lead to the death of a patient thereby resulting in the prosecution of doctors are discussed. Furthermore, it analyses the ignorance of people facing unprecedented death, who blame doctors, putting them under the purview of the court, and the legal actions that help detect true malpractices in the medical system.
The relationship between a doctor and his patient, whether it's long-term or transient, is a very salient one. The patients generally approach a doctor to obtain a cure for any ailment. The expertise of the doctor helps the doctor in curing the patient of his disease. The doctors generally make a prescription consisting of medications and practice to be observed that can help in the speedy recovery of the patient. The doctor of a patient can be held accountable for the health condition of a patient. The patient should be made aware of the illness and the emergencies that may arise as a result of the treatment involved. There are various laws and forums which protect the patients in the case of medical negligence. However, there are very few laws to protect doctors in such cases. Most patients raise false allegations which spoil the reputation of doctors and hospitals in addition to being blackmailed for obtaining huge compensation amounts. The patients generally lack a proper understanding of the scenario and provide consent without a proper understanding of the scenario. Also in some cases, the allegation is raised for obtaining the compensation alone.
Negligence can be considered as an act or omission of an act, which may fall short of a standard action that should be exercised by any reasonable man. The duty to care and precision is breached in a negligent act. The existence of a contractual agreement is necessary to prove the occurrence of a negligent act. Any person who acts negligently is fully responsible for the consequences of his act. Negligence is generally a tortious liability1. To account for negligence, the Indian law puts forward The Consumer Protection Act, 2019 which deals with any defect or deficiency in services rendered, inclusive of medical services. The origin of the tort of negligence occurred from Donoghue v. Stevenson (1932) AC 562. The duty of care of the doctor towards the patient should be established to prove the act of negligence. Medical negligence may sometimes prove as a pivotal cause that may result in the death of the claimant. Cases of medical negligence are on the rise in India and hence doctors are under the purview of the tort of negligence now under the context of formulated legislation “The Consumer Protection Act 2019”.
Medical negligence is the failure of medical experts to care for a patient which may result in deformity or death of the patient2. Medical negligence causes a higher degree of risk than any other profession. There are guidelines to procedures to be followed by doctors when attending the case of a patient. Failure of medical profession involves skill imparted negligently which results in medical negligence. Doctors bear a legal duty too towards their patients in providing the best treatment to his patient. When a breach of contract in the doctor-patient relationship occurs, judicial intervention is ensured.
GLIMPSE INTO THE HISTORY OF MEDICAL NEGLIGENCE
In the earlier days, medical negligence was considered more of a crime than a tort. With time and due to the increase in the development of legal facilities and laws in the medical arena, medical negligence evolved as a tort. This was done to ensure that damages caused by the act of negligence were recognized and due compensation provided to the victim. As early as 1347, surgeon G.Mort was directed to pay the damages to his patient whose hand got injured due to the doctor’s medical negligence with damages. In this case, the court considered the act as a tort and not a crime.
In the United States, in the nineteenth century, physicians contradicted the contractual relationship between the doctor and patient. In post-revolutionary America, a huge decline in religious fatalism occurred. Lawyers considered medical negligence cases as a huge source of wealth. Due to the importance and need of the profession in society, medical provision evolved into high standards. Earlier in the eighteenth century, the patients had an upper hand in the diagnosis and doctors had the least control in such diagnosis. Later due to the development of medical technologies and improved diagnosis doctors had the upper hand in diagnostic interpretations. Several medical negligence cases started growing and patients started filing more lawsuits against the doctors.
In the twentieth century, acts were formulated in such a way that they safeguard the interest of both the doctor and the patient. According to English law, doctors always had an upper hand in such events, and negligence in the medical field was viewed differently than negligence in other professions. The 1980s were considered the golden age of doctors in the United Kingdom3. The development of Bolam rule adopted in the UK was adopted in India as well to prove medical negligence. In the twenty-first century, as medical technology developed more, more patient rights start evolving.
KEY DOMAINS OF MEDICAL NEGLIGENCE
Generally, human beings have an obligation of care towards each other. These social responsibilities and humane values towards society bind the society in the fast-moving world. These duties encompass already existing obligations as well4. A breach in these existing obligations results in serious complications when it deals with a medical case. When a patient gets admitted to the hospital, the doctor in the department concerned has a moral obligation towards the patient which arises automatically on account of the duty to care5. In case a patient admitted develops a cardiac arrest all of a sudden, any doctor present in the situation is morally obliged to perform life-saving measures to save the patient.
The breach of this duty of care is considered an improper act and it results in the breach of duty. Any doctor acting unreasonably creates a breach of contract. The patient deserves not just a reasonable standard of care but a professional standard of care. Medical negligence is a specialized form of negligent act arising due to the lack of expected professional standard of care which involves the skill and professional expertise of a medical professional. No concessions can be allowed for the lack of relevant experience and skill of a doctor. A doctor working on the first day of his service is expected to work with the same diligence and care as he would do on the last day of his professional service. The only difference which may exist between the two may be only due to the skill and experience which he develops over time6.
Causation may be considered as a summary of the cause and effect of a particular event. If the cause and effect are linked, it results in harm to both the doctor and the patient7. To establish the act of medical negligence, the affected patient should prove the link between the cause and effect of the harm resulted is due to the negligence of the doctor and there exists a pre-existing duty of care towards the patient. E.g. If the patient is suffering from abnormal dilation of the aortic wall [aortic aneurysm], and surgery is necessary as a result of this, it may lead to paralysis in some cases. In such a case, the patient should be able to establish that the surgery to cure aortic aneurysm resulted in the paralysis of his body and also that it is due to the negligent acts of the doctor8. The final element to prove an act of negligence is related to the maxim “Res Ipsa Loquitor” – says that things speak for themselves. Like, leaving a swab or cotton inside the body of a patient negligently during a surgical procedure or a surgery performed on the wrong side of a patient, etc. indicates utmost negligence of the doctor and such acts need no further explanation nor proof to prove negligence9.
TEST FOR MEDICAL NEGLIGENCE
The standard of care and professional wellness to be offered to a patient is generally determined considering the well-being of the patient.
The Bolam Test of the year 1957 is a benchmark case in determining medical negligence. Bolam v Friern Hospital Management Committee [  2 All ER 118]. Accordingly, the house of lords gave the following guideline: ‘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’10. After this benchmark judgment, the burden of proof started to shift towards the patient. It was the duty of the patient alone to prove before a body of experts that the practice of a medical professional was not up to the desired standard and hence resulted in harm to the patient11.
Several hurdles were existent in applying the Bolam test. As the expert panel constituted of many doctors, manipulation of opinion was easy for doctors. It is very difficult for the patient to establish genuinely the complaint. It is a chaotic tool that leans more towards the doctors. Thus, rather than increasing the standard of treatment and care for the patient, it causes the opposite effect. Most such cases end in doctors protecting each other resulting in no standardized care regime for the patient12.
The Bolitho test was remarkable outreach that shifts more towards redressal for the claimant. Bolitho (deceased) v City and Hackney Health Authority  P.I.Q.R P334. The facts of the case are as described hereafter. At the age of two, Bolitho suffered from patent ductus arteriosus a condition that arises due to a faulty connection between the pulmonary artery and aorta during foetal life. Usually, after delivery, these connections get closed but for Bolitho, it persisted and surgery was performed to close ductus arteriosus. He made a steady recovery after the surgery but a year later, he was admitted again, this time in a different hospital where he succumbed to respiratory collapse and cardiac arrest. The parents of the patient claimed that the death of the patient occurred due to the negligence of the paediatrician. They claimed that the doctor failed to give Echo-tracheal intubation. The doctor defended using the Bolam Test saying even had intubation was done, the patient would not have survived. The jury first opined in concurrence with the Bolem test but later the jury said that doctors cannot put a patient's life in jeopardy using the Bolam test as a source of excuse. Also in the subsequent appeals, the house of lords rejected the Bolem result which gave way for the Bolitho test of reasonableness rather than mere opinions of the group of doctors13.
The Bolitho test adverted that if a doctor is taking the defence of Bolam mere opinions will not suffice. The reasonableness of the treatment and logic behind the course of the action, the evident risks, and measures to be adopted in the course of action in a medical procedure should be explained. Unlike the Bolam test, the Bolitho test stands in a balanced position14. In the Indian scenario, the Bolam test is adopted in most cases. only on two occasions, the Bolitho test was adopted. Bolitho has been adopted in Samira Kohli v. Dr. Prabha Manchanda (2008) 2 SCC 1. & Vinitha Ashol v Lakshmi Hospital.
The most recent advancement is the Montgomery test, a recent advent in the field of medical investigations and trials. The gist of the test is to determine whether the doctor had given sufficient advice to the patient regarding the illness and the treatment. In this test, the claimant should prove in the court that the doctor had withheld some crucial information about the treatment and that information resulted in harm to the claimant15.
PROMINENT CASES OF MEDICAL NEGLIGENCE
Common cases of medical negligence revolve around hospitals and medical practitioners as listed below:
• Surgical mistakes: This is the most common type of medical negligence. Surgery in the wrong side of the body or organ, leaving surgical instruments or swabs inside are examples. An underperformed surgery leads to damage to other organs of the patient's body. Improper cleaning and sanitization in the operated area cause the infections to spread. Cosmetic or plastic surgeries may lead to deformity or prominent scarring16.
• Misdiagnosis: Wrong interpretation of symptoms leads to wrong diagnosis and wrong treatment for a prolonged period may lead to serious consequences17. The wrong diagnosis of the disease leaves the original disease undetected leading to further consequences which may lead to serious implications and in some cases, the death of the patient. e.g., failure to detect cancer, diabetes, stroke, meningitis, etc18.
• Errors in prescriptions: Prescribing the wrong medicine, the wrong dosage, not checking for allergies, not getting proper information about existing medications and their schedules may prove to be harmful and life-threatening to the patients19.
• Birth related injuries: These include untimely ordering of C-Sections, failure to monitor distress in babies, failure to monitor internal bleeding in mothers, etc. Birth-related injuries may cause serious implications to both the mother and the baby20.
FALSE ALLEGATIONS IN NEGLIGENCE AND REAL COMPLICATIONS IN TREATMENT
It is noteworthy that every medical negligence case is not authentic. Some of them are fabricated and medical negligence cases are highly misused. Huge compensations recovered by patients. Though false allegations and cases get rejected due to the absence of evidence to substantiate the matters about the case, these suits put the doctor's life in jeopardy. As a result of these, the doctor loses his reputation, may have to face prosecution and arrest and monetary losses may also occur. In many situations, in the case of newly discovered diseases like COVID-19, the patients even after recovering may face side effects of the disease. The patients may blame the doctors for these side effects and complications. In such cases, where doctors may also have little knowledge about such diseases, it is very difficult to identify treatments.
Citing an example of alleged medical neg: [Krishna Sarkar v. Government of Tripura,2018 SCC Online Tri 209, Order dated 13-09-2018]. The petitioner was the father of a deceased child who passed away due to a head injury. He was immediately admitted to the hospital where after three days of treatment, he was shifted to another hospital where he succumbed to death. Upon the death of the child, the petitioner filed a complaint about medical negligence. A committee was constituted by the director of health services and a report by the committee found out that there was no negligence. The court thus dismissed the writ citing that it was a false allegation due to lack of evidence21.
Medical science is an evolving science and hence there is a huge risk and possibility for failure. The doctors cannot be contented for negligence and these adverse risks and side-effects when the patients have consented to the treatment. Some diseases are very rare and difficult to cure and involve adverse risks during treatment. In neurosurgeries, there is a high risk since neurological treatments are unpredictable and evolving. e.g., in intra-cranial tumour excision, blood clot evacuation, removing spinal tumours where the risks include infections, paralysis, nerve injuries, etc. Most negligence cases filed by patients fall in this category where the doctors may not fail the patients deliberately, but the treatment itself is risky and the patients fail to understand the risks involved and the consequences.
Doctors who are covered according to the Indian Legal System stand questionable under the Consumer Protection Act and hence may be sued for negligence. However, in some cases of gross negligence resulting in the death of the patient, the doctor may be charged under IPC as well. The Supreme court has made a ruling which states that ordinary lack of care is not enough to charge medical negligence or criminal law against a doctor as they make every effort possible in saving the life of a patient till the last minute. It is very much important that doctors should be able to perform their duties fearlessly. But the doctors do not get protection from their civil liability if negligence is proved beyond doubt and the negligence is gross enough.
1. ALEX SAMUEL, LAW OF TORTS 306, ( DWIVEDI & COMPANY, 2016)
2. S ELANGO MS, Medical Negligence Suits: Risk Management, VOLUME 58, MED J MALAYSIA, 625, YEAR 2003.
3. KIM PRICE, Towards A History of Medical Negligence, Vol 375, Issue 9710, Perspectives The Art of Medicine, P 192-193, 2010, https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(10)60081-5/fulltext
4. DAVID G OWEN, The five elements of Negligence, Vol 35, Issue 4, Hofstra Law Review, 1671, 2007
5. DANIELE BRYDEN (FRCA LLB (HONS) MML), IAN STOREY (LLB (HONS), Duty of care and medical negligence, Vol 11, Continuing Education in Anaesthesia, Critical Care & Pain, 124, p124-127, 2011.
6. Ibid 5
7. Ibid 4
8. Ibid 5
9. Ibid 5
10. Bolam v Friern Hospital Management Committee [  2 All ER 118].
11. Medical and Legal, https://www.medicalandlegal.co.uk/wp-content/uploads/2012/05/From-Bolam-to-Bolitho-unravelling-medical-protectionism.pdf ( last visited May 2012)
12. Ibid 11
13. Bolitho (deceased) v City and Hackney Health Authority  P.I.Q.R P334
14. Ibid 11
15. COLIN LIEW & THAM LIJING, The New Test for Medical Negligence: The Montgomery Test, EXEC SERIES, SMA NEWS, p28, SEP 2017, https://www.sma.org.sg/UploadedImg/files/Publications%20-%20SMA%20News/4909/ES.pdf .
16. PhillyLaw, https://phillylaw.com/types-of-medical-negligence/ ( last visited May 2019)
17. HG.org Legal Resources, https://www.hg.org/legal-articles/common-types-of-medical-malpractice-31330 (last visited 2021)
18. Medical Negligence Direct, https://www.medicalnegligencedir