Under the Law of Torts, word negligent has been defined and Word ‘negligence’ is defined in Black’s Law Dictionary (7th Edition) “The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or will fully disregardful of others’ rights. The term denotes culpable carelessness.”
Further, it is well accepted that the degree of care expected of the member of the profession is required to be shown and unless it is established by the plaintiff that such a care was not taken, the claim for damages on negligence cannot be accepted.
The Hon’ble Apex Court in a judgment in case of Jacob Mathew v. State of Punjab & Anr., reported in AIR 2005 SC 3180 has considered this aspect of negligence in context of the medical profession and it has observed that “the negligence in the context of medical profession necessarily calls for treatment with a difference. To infer the recklessness or negligence on the part of the profession in particular doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional….. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence……. 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.”
The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England (Fourth Edition, Vol.30, Para 35), which reads as under:-
“The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practise accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practise is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practise; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”
Above said three tests have also been stated as determinative of negligence in professional practise by Charles worth and Percy in their celebrated work on Negligence (ibid, para 8.110).”
It has also been observed that as it can be found that the procedure which was in fact adopted or which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chooses to follow one procedure and not other and the result was failure.
Similar view has been taken by the Hon’ble Apex Court in a judgment reported in case of State of Punjab v. Shiv Ram & Ors., reported in AIR 2005 SC 3280 again reiterating the aspect of medical negligence. In that case before the Hon’ble Court also with regard to the medical negligence in performance of an operation, it has been discussed with regard to the liability and referring to Jacob Mathew’s case, the aspect of liability of medical practitioner and criminal law has been discussed. It also refers to the parameters of focusing the liability. Therefore, the basis of liability of professional or doctor is negligence. In other words, unless the negligence is established, the liability cannot be fastened on the medical practitioner. Further, for the purpose of negligence as discussed, the standard of care expected of the member of profession is considered. The standard to be applied for judging whether the person has been negligence or not would be that of ordinary competent person exercising an ordinary skill in that profession. It is also observed in this judgment referring to the judgment in case of Jacob Mathew (supra) that “Deviation from normal practise is not necessarily evidence of negligence. …. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.”
The Hon’ble Apex Court in a judgment in case of Smt. Savita Garg v. Director, National Heart Institute, reported in AIR 2004 SC 5058 has also considered the aspect of such medical negligence in context of the claim under the Consumer Protection Act before the Commission and the hospital would be liable vicariously for the doctor engaged by them. However, first negligence of the doctor in performance of the operation has to be established and it has been clearly observed that the Court would be slow in attributing the negligence on the part of the doctor, if he has performed the duties to the best ability with care and caution.
14. It has been observed from the earlier judgment in the case of Spring Meadows Hospitals & Anr. v. Harjol Ahluwalia through K.S. Ahluwalia & Anr., reported in (1998) 4 SCC 39 that “Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a Court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor.”
Therefore, what is required to be considered is whether the ordinary skill as a member of profession was shown or not.
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