“Special skill must not only exercise reasonable care but measure up to the standard of proficiency that can be expected from persons of such profession.”
As stated in general terms, Negligence is the omitting to do something that a reasonable a would do, or the doing of something which a reasonable man would not. The liability arises upon the one who owes a duty of care towards the other.
But when it is being spoken about the breaches to be held liable in medical practices, some special qualifications are needed to be done. The general rules of negligence cannot be applied in matters of medical negligence, as it is. For instance, in ordinary negligence, in order to incur a liability some sort of “careless conduct” is to be proved. But in case of medical negligence, failure to conform to the required standard of care resulting in material injury is actionable negligence if there is proximate connection between the defendant’s conduct and the resultant injury.
As stated in R. v. Beteman, a medical professional owes a duty to the patient to use his diligence, care, knowledge, skill, and caution in administering the treatment…. No contractual relation is necessary. The law requires a fair and reasonable standard of care and competence.
Regarding the legal position in cases of medical negligence, several attempts have been made in order to establish the legal position in case of the civil liability incurred, but mostly were in vague terms.
It was in the case of Bolam v. Friern Hospital Management Committee that a concrete position of law upon the subject matter was clarified by a test. Mc Nair J, puts out in the most lucid terms, “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 …. well- established law it is sufficient if he exercises the ordinary skill of an ordinary competent man …… in the case of a medical man negligence means failure to act in accordance with the standards of reasonable competent medical man at a given time …. A doctor is not found guilty of medical negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men…. A doctor is not negligent merely because there is a body of opinion that takes a contrary view.”
The Bolam test has since been applied in several cases, both in English jurisprudence and Indian jurisprudence. It was held as a tool by the House of Lords while adjudicating in Whitehouse v. Jordan in the judgement of which it was stated that a medical professional might commit an error which may be completely consistent with the due exercise of professional skill. Such an error cannot be thus merely considered liable for; more glaring omissions of duty of care are required.
In an Indian case of Jacob Mathew v. State of Punjab and Another the Apex Court had pointed that in case of professionals, what is expected is that the professional would be carrying out his
skill in that branch with reasonable competence. The standard to judge is to seek existence of ordinary competent person exercising ordinary skill in that profession.
Though the test is still prevalent in adjudicating cases of medical negligence and alleged negligence committed in other professions, a shift of doctrine was observed in Bolitho case where a requirement was imposed as to the standard proclaimed to be justified on logical basis and must have considered the risks and benefits of competing opinions. It is a comparatively newer legal position and a more qualified one, which puts the defendant in a more challenging position. Till now in the Indian scenario the Bolitho test has only been mentioned twice, without much of applicability.
The current position of law in our country still follows the Bolam test, but certain legal expertise believe that the Bolitho test may soon presume importance in our country.
Author -Pragati Gupta
Student of Faculty of Law, University of Delhi.