Tuesday, 12 March 2013
LAW OF MEDICAL NEGLIGENCE UNDER TORT LAW
LAW OF NEGLIGENCE UNDER TORT LAW
Negligence is the breach of a duty caused by the 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. [See Law of Torts, Ratanlal & Dhirajlal Twenty-fourth Edition 2002, at p.441-442] Negligence means "either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; is rather a comparative term. In determining whether negligence exist in a particular case, all the attending and surrounding facts and circumstance have to be taken into account." [See Municipal Corpn. Of Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731, para 6; Adavanced Law Lexicon, P Ramanatha Aiyar, 3rd ed. 2005, p. 3161]
Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to the dictates of ordinary prudence.
In Bolam v. Friern Hospital Management Committee, [(1957) 2 All ER 118], the law was stated thus:
"Where you get a situation which involves the use of some special skill or competence, then the test.....is the standard of ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.... [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....Putting it the other way round, a [doctor] is not negligent, if he [has acted] in accordance with such a practice, merely because there is a body of opinion which [takes] a contrary view."
It has been laid down that an ordinary skilled professional standard of care for determining the liability of medical professional should be followed. (See Maynard v. West Midland Regional Health, Authority, [(1985) 1 All ER 635 (HL)])
Recently in Martin F.D' Souza v. Mohd. Ishfaq, [ (2009) 3 SCC 1], this Court laid down the precautions which doctors/hospitals etc. should have taken, in the following terms :-
"(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly....
(b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.
(c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary.
(d) A doctor should not experiment unless
necessary and even then he should ordinarily get a written consent from the patient.
(e) An expert should be consulted in case of any doubt...."
In fact, the Bolam case in common laws jurisdictions is weakened in recent years by reasons of series of decisions in Australia [Rogers v. Whitaker: (1992) 109 Aus LR 625 and Roenbreg v. Percival 2001 HCA 18]; Canada [Ribl v. Hughes: (1980) 114 DLR 3d 1] and the United States and even in the United Kingdom.
We may refer to Bolitho v. City and Hackney Health Authority, [(1997) 4 All ER 771 (HL)], where the Court got away from yet another aspect of Bolam case. It was observed :-