Article by Shivangi Mishra
(Student at Jamia Millia Islamia, New Delhi)
THE BOLAM TEST AND JACOB MATHEW TEST
A medical professional is expected to possess certain minimum standards of skill and training besides essential medical knowledge in order to perform technical medical treatments that involve critical questions affecting vital organs of the human body. While inspecting instances of medical negligence, in addition to finding whether the concerned medical practitioner possesses a professional medical degree, it is imperative to ascertain if he or she has attained the degree of due care established by law. Medical negligence that can be understood in relation to the larger theme, professional negligence is a sub species of the tort of negligence. Under Indian law, medical negligence is a criminal offence for which a doctor can be imprisoned. Medical negligence is classified as a criminal offence owing to the fact that medical malpractice is not merely negligence on the part of the care giver (the doctor in case of medical negligence), it rather is a conscious decision of the care giver to offer or force a medication, drug, treatment or prognosis upon a patient in order to secure monetary gains.
Negligence is generally described as failure to take due care. The tort of negligence constitutes existence of a duty to take care, the failure to achieve the standard of care, prescribed by law and the entailing breach of that standard of care due to such failure and the consequent damage connected with such breach and suffered by the patient due to the breach of the doctor. In order to gauge medical negligence, the Bolam test that was devised in the British case, Bolam v. Friern Hospital Management Committee was adopted in Indian medical jurisprudence. In the instant case, the Queen’s Bench Division of the British Court averred that a doctor shall be guilty of negligence only when he has not acted in accordance with the practice accepted as proper by a responsible and authentic body of medical men skilled in that particular art.
Further, the Indian Supreme Court ruled in Jacob Mathew v. State of Punjab, clarified that while assessing whether the disputed practice falls within the purview of medical negligence, the standard of care that is to be adopted is to be judged in the light of knowledge available at the time of the concerned incident, and not at the date of trial. It was also highlighted by the Apex Court that “a simple lack of care, an error of judgment or an accident is not proof of medical 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.”
Finally, while dealing with the question of negligence, the Supreme Court observed that a professional may be held liable for negligence when he did not possess the requisite skill which he professed to have possessed, and/ or when 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. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices.”
“GROSS” NEGLIGENCE AN ESSENTIAL ELEMENT
Furthermore, with respect to criminal liability of medical practitioners, the Supreme Court in a recent judgment in the case of Dr. Suresh Gupta vs. Govt. of Delhi confined the radius of criminal proceedings against medical negligence to incidents of gross negligence. It elaborated that a medical practitioner cannot be held punishable for every mishap or death during medical treatment. No criminal liability should be attached where a patient’s death results from error of judgment or an accident. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable. In fact for a medical practitioner to be held criminally liable the degree of medical negligence must extend to complete apathy for the life and safety of the patient tantamount to a crime against the State.
CIVIL NEGLIGENCE VERSUS CRIMINALLY CULPABILITY
Henceforth, in consonance with the verdicts in Dr. Suresh Gupta and Jacob Mathew, in a case where the artificial intelligence-enabled MRI machine malfunctions, gives faulty diagnosis and the doctor, relying on the faulty diagnosis wrongly prescribes medication, he shall at most be entitled to take recourse to a civil suit and hold the doctor liable in tort for damages for negligence due to his failure in ensuring the safe and efficient functioning of the MRI machine, however, he shall have no claim in instituting a criminal case against the doctor in order to imprison him as, in line with the Dr. Suresh Gupta judgment, the act was not grossly negligent, as also in congruence to the Jacob Mathew verdict, the rashness was not of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent.
Tangentially , after a huge legal furor, the Supreme Court in Indian Medical Association v. V.P. Shantha held that under Section 2(1) (d) of the Consumer Protection Act, 2002, the patients availing medical services shall be classified as ‘consumers’ and under Section 2(1)(o) of the Act, the doctors shall be deemed to be discharging medical “services”. Hence, the act of doctors comes within the frontiers of the Consumer Protection Act. Further, Section 14 enumerates the relief that can be granted for deficiency in service that shall be in the form of compensation.
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